The case for restorative justice in campus sexual assault discipline

Maybe once we accept that colleges cannot outperform the criminal justice system, permission will be granted to try something that actually draws on our strengths. We are so much better at creating the conditions where young people can learn from their mistakes than pretending we can fight crime like the professionals.

PUTNEY — Sometime between freshman orientation and Thanksgiving break, a female undergraduate on a campus somewhere in the United States will be sexually assaulted by a peer. A panel will convene to deal with the situation and will inevitably handle things poorly. Just as rape predictably occurs in the fall on some college campuses, campus disciplinary panels are also predictably ill-prepared to properly adjudicate.

Why is it that colleges can't respond to such a predictable problem?

One explanation is that members of many campus disciplinary panels have little to no training in how to conduct an investigation or hear a rape case.

Many panelists are appointed early in the fall semester with little time to get their bearings before the first case. If they are lucky, they have had a day-long training before they must evaluate testimony involving beer, semen, and lots of fear and shame.

But even if the panel had weeks to get ready, the format itself leans away from fairness.

Panelists act as both prosecutors and judges. Their authority is absolute. They evaluate the evidence and determine the facts. Without attorneys present to counter unreasonable claims or object to a line of questioning, nervous panelists often subject witnesses to random and/or incriminating questions.

The third complication is that all colleges are afraid of losing prestige. Colleges keep their prestige by appealing to a specific “brand,” the set of values that keeps alumni contributing and new students coming in.

Whether or not they intend to, panelists are strongly influenced by their particular brand. On campuses where victimhood is a privileged status, the accused tend to lose the presumption of innocence. At colleges where athletes are treated like demigods, the accuser tends to be treated as a heretic.

Given these shortcomings - the lack of training, the inquisitorial format, and the need to conform to cultural norms - one would think these panels would be outlawed.

On the contrary. Colleges are currently under a federal mandate to maintain a well-oiled disciplinary system without the wherewithal to do a good job.

The new Title IX guidelines are long on what shouldn't happen: no cross-examination; no questioning of the parties' sexual history; no discrimination against any of the parties on the basis of “sexual orientation or gender identity, immigration status, or whether they have a disability.”

But the guidelines are short on how to run a proceeding or what constitutes solid evidence. When it comes to determining the facts, we're on our own. We just have to get it right.

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But if we start with the evidence of past Septembers, then what we need is not more inept disciplinary panels but more intelligence about the actual situation.

All students should know how to provide solid evidence for a rape case; they should know that if they have been victimized, they should not shower immediately after non-consensual sex but to go to an emergency room and expect a fairly exhaustive examination when they get there.

They should also know the rights of the accused, particularly which constitutional guarantees apply in a criminal court (quite a number of them) and which apply to private colleges (not as many).

The distinguishing factor of these sexual misconduct panels is that victims offer testimony without the accused being present. Unlike criminal courts, where you have the right to face your accuser, these panels hear the details away from the ears of the alleged offender. It is only under these judicial circumstances that victims can share embarrassing details without suffering further humiliation. Without these protections, women will be less likely to report.

At least, that's the position of victim advocates. The procedures and constitutional safeguards of criminal court, they say, are inherently unsafe for a woman who has been victimized by rape. The adversarial procedures and constitutional protections end up retraumatizing her. The disciplinary system set up under Title IX is better for the victim because the accused is kept away.

And if some victims ask for justice but don't want to go to the police, we should be able to talk frankly about the option of mediation.

Unlike sexual misconduct hearings, where the panelists run the show, mediation encourages all affected parties to talk to one another. Roommates, housekeepers, an admissions counselor, for example, might weigh in on the matter along with the victim and the aggressor.

Roommates might describe how hard it was to concentrate when they heard what happened to their friend. Admissions counselors describe what it's like talking to applicants after they've read about the party on social media. And a janitor can explain how rough it is to go to work the next day. Mediation is profoundly educational.

Unfortunately, Title IX prohibits the use of mediation - rather than a formal hearing - to resolve sexual misconduct cases.

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And so we can expect that a large number of young women will be sexually assaulted by upperclassmen and that alcohol will be involved. And we can anticipate that we will be shocked when another disciplinary panel's deficiencies show up in the national press.

Maybe once we accept that colleges cannot outperform the criminal justice system, permission will be granted to try something that actually draws on our strengths. We are so much better at creating the conditions where young people can learn from their mistakes than pretending we can fight crime like the professionals.

As more and more of these cases are appealed by respondents who claim their constitutional rights or contractual obligations were violated, more and more colleges are referring these cases to criminal courts. This is a reasonable strategy from the point of view of institutional liability, but not a good idea if it keeps victims from reporting disturbing events in the dorms.

But does the in-house system really improve dorm life?

It makes sense that victim advocates put personal safety above all other considerations. They meet a victim when she is most distraught. But that particular emotional reality, while very big, is not necessarily permanent. In cases of acquaintance rape, the urge to be protected from the offender often competes with the equally strong urge to be heard.

Researchers in the United Kingdom found that sexual assault victims who participated in a restorative justice conference experienced a “really big turning point.” For one victim, being able to speak directly to the offender was not traumatic but deeply healing.

“I just wanted him to hear me,” she said.

In Arizona, RESTORE (Responsibility and Equity for Sexual Transgressions Offering a Restorative Experience) uses restorative justice to adjudicate cases of acquaintance rape. Parties in these cases work out a plan for “accountability, healing and public safety.” Safety in this model of justice is not protection from a certain offender but collaboration with others to create a healthier atmosphere.

Rather than seek protection from the offender, which tends to increase his power and her powerlessness, restorative justice allows victims to be more than just afraid.

Victims can use their knowledge to create the conditions for better sexual encounters. For students living in co-ed dormitories, this model improves residential life in general. In the current disciplinary system, either the expelled student or the disappointed accuser disappears. Any opportunity for education is lost.

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Unfortunately, victim advocates have as many reservations about restorative justice as they do about criminal justice. Restorative justice, they claim, doesn't recognize the power differential between a victim and her abuser. There is no way that she can approach him and not be re-traumatized. To confront one's assailant is to “relive their assault,” as one commentator on an earlier op-ed put it. “How can anyone think that is a good idea?”

If one accepts the assumption that contact equals trauma, then restorative justice is not a good idea - a position adopted by Title IX guidelines.

But if we expand our idea of what a healthy confrontation in a well-facilitated and supportive environment might look like, then contact with the offender might actually transform both parties for the better.

Besides, the appellate process undermines the promise that a victim can find safety without confronting the accused. She might not have to testify before him in front of a disciplinary panel, but he will be present should she have to testify in a federal appeals court.

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Rather than encouraging a judicial system that creates heightened expectations for personal safety, we would do better to provide opportunities for honest conversations that lead to heightened expectations for public safety.

The current in-house system, with its fear of confrontation, doesn't do that. But restorative justice does.

The trauma of rape need not define the emotional contours of the recovery. Using restorative justice allows victims to be more than their fear. And should an aggrieved party decide to sue after a restorative justice hearing, she'll be ready to meet him in court.

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