Rape and Restorative Justice: Understanding 5 Common Misconceptions
A very brief glimpse into the conferencing process
The criminal system is rightfully under attack when speaking of its handling of sexual assault cases. Less than a single percent of sexual assaults result in a successful conviction. Only five percent of reported cases are even referred to prosecutors, meaning detectives or patrol officers are the gatekeepers of 95% of these cases. The problems with detectives being responsible for assigning blame and determining the fate of these cases are bountiful and can be further explored in this podcast, or further synthesized down to the fact that they barely receive any training on handling sexual assault, and police culture is rife with biases, sexism, and oppression.
Even in the few cases that land on prosecutors’ desks, they are more concerned with their win rate and resources, and shy away from attempting to prosecute “difficult cases”. The quote marks around ‘difficult cases’ justly come complete with an extensive eye roll. Even in cases with documented confessions, DNA evidence, and witnesses, attempting prosecution is rare. Ego in the district attorney’s office is a powerful weapon that further harms victims of violent crime.
The problem with the criminal system and rape also resides in the fact despite an unrelenting myth that survivor-victims lie about being assaulted, study after study consistently demonstrate that an estimated 2–10% are false reports, no higher than any other crime. And yet those other crimes are often far more heavily prosecuted. Many sexual assault detectives, as well as members of society, are unaware of or flat out refuse to believe these statistics, even coming straight from the Department of Justice.
Societal rape myths, toxic cultures of oppression, and a criminal system that doesn’t even try to do the right thing leaves survivor-victims of rape with very few options in terms of finding justice or closure through a formal reporting system. Enter the option: restorative justice.
Restorative justice is a relatively new concept to many, although it has been practiced in some countries and cultures for extensive periods of time. Perhaps because of its newness, or because of a reluctance and skepticism to adopt a new process, or because of misconceptions and fear, restorative justice in terms of sexual assault and rape has not been adequately explored or entered into mainstream conversation as a possibility.
To provide some clarity to the process, here are some responses to a few misconceptions:
1- The survivor-victim is forced into the process.
Restorative justice processes, done correctly, will never be initiated without the survivor-victim first initiating that process and wanting to be involved in it. It is a process facilitated by a highly trained professional who meets with the survivor-victim and can explain the process, can explain what participants can expect from the process (both good and bad), and can help to determine the readiness of the survivor-victim and the appropriateness of this process for their case. If the facilitator feels that the survivor-victim isn’t ready, or the case is not appropriate, the process may be ineligible to occur for a time or forever. Without the survivor-victim being willing, ready, and eager to participate, this option is not on the table. Period.
2- The offender has no consequences.
Consequences and accountability are an important part of the restorative justice process and is incomplete without them. The survivor-victim actually gets to have a say in the consequences, which are typically ongoing and monitored by professionals who facilitate the process. The consequences are not set in stone. This process is flexible and allows for the survivor-victim to have a say in determining what meaningful accountability would look like to them. Survivor-victims who have participated have often found this aspect of participation in their own case to be empowering, where they are treated as a human who was harmed and has a voice, instead of merely a witness of the State with little control over the process.
3- Restorative justice is part of the criminal system.
Not necessarily. Restorative justice is a justice-seeking mechanism that can be incorporated while survivor-victims seek justice through the criminal system, but it also can take place in stand-alone centers that have agreements with legal systems to keep the process separate. Restorative justice can be held in rape crisis centers, healing centers, and other neutral spaces that do not involve the criminal system at all. In turn, it can also be offered for certain cases that are being processed through the criminal system: once they make it to the prosecutors’ offices, or once the rare offender who is actually incarcerated is in jail or prison. The process is flexible and differs from place to place. And no, it does not have to be either/or- communities can offer both restorative justice options and criminal options simultaneously while letting survivor-victims choose.
4- Restorative justice is like mediation.
Mediation still involves a process of determining and negotiating over who caused harm and the extent of that harm. Restorative justice is based around the key tenet that the perpetrator is already willing to acknowledge that they caused harm. In this process, the survivor-victim has voice in sharing how the offender has harmed them. The offender has to face and acknowledge what the survivor-victim says. Often, community members, such as family and friends, are also allowed to be involved and explain how the action harmed them as well. The harm is voiced and validated. The offender accepts responsibility for that harm.
5- This process allows highly violent and repeat offenders to continue to cause harm.
First of all, so does the criminal system, 99% of the time, and it also often further deeply harms the survivor-victim along the way. Aside from that point, highly violent offenders and repeat offenders are generally ineligible to participate in restorative justice processes. Offenders who refuse to acknowledge harm are always ineligible. Facilitators also are adept at vetting out sociopathic offenders and offenders participating for any reason other than to acknowledge that they caused harm and express remorse and accountability. Facilitators meet with offenders in preparation just like they meet with the survivor-victim to assess their readiness and ability to participate. If the facilitator assesses that the offender is not genuine in their participation, they in theory would be vetted out and ineligible.
In brief conclusion…
There are countless other misconceptions around restorative justice and several valid concerns and questions that might not yet have answers. Communities take the lead on deciding the answers to some of those questions. Some common concerns are what to do with minors, how much time should go by before a survivor-victim can make a sound decision to participate, and what happens to offenders to prevent them from offending again (i.e. is there a record that they participated and caused harm?). Will survivors be guilted into participating? If an offender completes the process and then causes harm again, will the original survivor be blamed for the offender’s actions? (*An important time to remind us all that the only person responsible for the offender’s actions is the offender.)
I do not write about this topic because I personally believe it is the best answer, the only answer, or maybe even an answer at all. In my case, I firmly believe that this process is not, in fact, an option. But in other cases? That’s not my place to decide. It’s the survivor’s choice. And I do believe that adding options to our communities that could empower a group of people who have been consistently disempowered is worth exploring.