Updated: Sep 28, 2023
For survivors of sexual assault, it is a pathway to healing
Rooted in Indigenous, Jewish, and Mennonite cultural traditions, restorative justice (RJ) is a human-centered process by which an offense is addressed as part of or as an alternative to harsh disciplinary measures or, in terms of criminal law, the criminal legal system itself. As noted on the website for Restorative Justice New Mexico (RJNM), a resource center for those wishing to implement RJ programs in their spheres of influence, it redirects our focus from a rule broken or a crime committed to a harm done. Rather than rely on a state-sponsored punitive code that gives survivors little voice in their own healing, the process of RJ involves all those affected by a crime, including the person responsible, and works toward reparation in a way that best serves the victim’s needs.
According to legal scholars Lara Bazelon and Bruce Green (2020), this can happen through “victim-offender dialogues, healing circles, and other, more indirect ways of engagement” that empower victims — some of whom may want “solely, or additionally, restitution, a public apology, access to counseling, and additional measures such as securing safe housing or civil protective orders” (p. 35).
“It offers victims the opportunity to ask questions that only the offender can answer, express how it affected them, and be part of determining a meaningful way to repair the harm,” notes RJNM.
RJ recognizes that crime can include emotional as much as physical harm and that individual harm impacts the entire community (RJNM). Thus, involving the community in the work of repair is also part of RJ. The measure of accountability to which a person who has caused harm must answer is a matter of conscious, self-implicating inner work concerning their offense — sometimes involving a requirement of intensive and ongoing therapy.
“At the heart of the restorative approach is the offender’s acknowledgement of causing harm and validation of the victim’s suffering, a reckoning with the offending behavior that involves reflection and insight, a commitment not to re-offend, and an agreed-upon means of holding the person accountable,” Bazelon and Green (2020) write (p. 35).
In other words, the focus is on restoring that individual to right relationship with the community they have harmed as a result of their actions. It is a process of mediation rather than adjudication determined by the willing participation of both victim and offender.
The process of reckoning itself happens in person inside a neutral meeting space hosted by organizations, agencies, or individuals with training in facilitating RJ mediations. A trained mediator meets with participants individually to prepare them for the meeting where everyone will have a chance to speak about what happened and how it affected them.
“Often there is a change that happens when people feel heard and understood,” RJNM explains. “Once this has happened, then discussing what to do and coming up with a meaningful solution comes more naturally. Offenders are more likely to fulfill restitution agreements if they have been part of this process than if it was determined by a judge.”
For sexual assault survivor and RJ advocate Marlee Liss, the possibility for reconciliation, redemption, and repair was far more appealing than becoming a spoken-for object of the state in court proceedings. In 2018, two years after being raped and on the verge of a criminal trial to prosecute her assailant, Liss decided not to press charges against him after feeling retraumatized by the criminal justice system. She felt it gave her little choice in deciding the outcome of her testimony and stole her narrative of survival through the standard retributive solution — one which defaults to an “ill-kept promise” that the system “will relieve your pain by prosecuting your offender to the maximum possible extent” (Bazelon & Green, 2020, p. 29).
“When the trial happened [in 2018],” Liss said in an interview with the Canadian Women’s Foundation (CWF), “I was on the stand for something like [five] hours. My assailant just sat there; he didn’t have to say anything. He was just looking at the floor the whole time. And this person is a stranger to me too, so this is only the second time I’ve seen him in my life. That alone was really jarring.”
The questions lawyers asked were very invasive, Liss added.
“They asked things you would never remember, like ‘How many thrusts per minute?’ or ‘Wait a second, you said you were on your back, how could he possibly touch you the way you described if you were on your back?’”
What Liss really wanted was to confront the man who assaulted her for four hours straight on a night in 2016 when she was just out to have fun with her girlfriends. She not only wanted him to feel her pain, to tap into his own remorse and walk away reckoned with the harm he caused, but she also wanted to understand what could have wounded him so much as to commit such an act. In the time leading up to the trial, Liss had already published a book of poetry and discussion prompts called Re-Humanize which provided a healing path forward. However, there was unfinished business that a trial could not resolve.
“A week before the preliminary trial,” Liss tells the CWF, “I got free legal counsel from the Barbra Schlifer Commemorative Clinic. They asked me to run through some questions for practice, and I just froze. I had been so open in my book, and I felt like I’d done a lot of healing. But something about this process made me lose my voice and made me question if I could handle being on the stand. I was afraid I would throw up or freeze again.”
She continues, saying she didn’t think much about the legal process while waiting for her subpoena, hoping the day would never come. Instead, she had a picture of how an alternative “trial” might unfold:
During this time, I had a vision of sitting together in a healing circle and humanizing one another. I wanted to ask [my assailant], “Hey, what the hell did you experience in your life that created so much wounding in you that you could turn around and do what you did?” I shared this vision with very few people because it didn’t seem like a commonly-held stance or approach. I feared I might get condescending responses, or people trying to tell me I have Stockholm Syndrome. I told a friend that this is what I wanted to do, and she said I should try to make it happen. I posted on Instagram that I wanted to know more about restorative justice — someone I don’t even know recommended The Forgiveness Project. I got connected with someone there. Through the Forgiveness Project, I was connected with my current lawyer, Jeff Carolin. We talked about my vision, and that’s brought me to where I am now with pursuing restorative justice, which has its roots in Indigenous culture.
The exchange that took place in 2019 at her “circle sentencing” — which included the person who assaulted her, his best friend, Liss, Liss’ mother and sister, a mediator, and her two attorneys — was transformative. Liss was able to find her voice in asking hard questions of her assailant just as he was able to tap into his personal history in a way that helped make sense of his behavior, rooted, as Liss would have it, in “patriarchal wounds.” But it was a reckoning that took months to achieve, involving intensive therapy on the part of the person who caused Liss harm.
“For me, it’s enough — and it’s actually deeply meaningful — that he has to go to therapy,” Liss told CWA before her healing circle had convened. “In a way, I feel like that’s all I ever wanted. I wanted him to do deep reflection. I wanted some level of openness for him to feel how painful this was for me. I feel like if he has enough openness to connect with what I went through and what I felt, then that would change so much within him. I wanted real rehabilitation for him, and this option felt like it could start that process.”
RJ is not for everyone nor should it replace criminal justice processes that would best serve the public interest — as in cases of dangerous, repeated offenders — but it deserves its place as an alternative approach to holding offenders accountable for their crimes. This is especially germane to cases of sexual assault, which go under-reported and under-prosecuted for a plethora of reasons related to how safe the victim feels in relying on the criminal justice process.
“Under our current system, victims who report their sexual assaults to the police are presented at most with two options: the potential for a criminal conviction, which may or may not be realized, or nothing at all,” write Bazelon and Green (2020, p. 34). Bazelon and Green (2020) argue that victims of sexual assault who prefer a non-adjudicative and non-punitive alternative such as restorative justice should have that option before proceeding to criminal trial because it “empowers them, helps them heal, and aligns with prosecutorial objectives” (p. 37)— namely, that they do what is best for crime victims.
Indeed, the one-size-fits-all approach to victims’ rights on which both prosecutors and victims’ rights advocates rely, fails to account for a victim’s multiplicity of needs while subjecting them to what Bazelon and Green (2020) outline as five fundamental harms:
the denial of choice in pursuing an avenue other than retributive justice or the criminal adjudicatory process, which “encourages the offender to deny or minimize responsibility thus thwarting the needs of some victims for accountability and repair”;
the denial of agency or autonomy in dropping charges as a prosecutor makes the call on pressing charges if sufficient evidence justifies it and can hold the victim in civil and criminal contempt for failing to follow court-mandated procedure when they do not agree with the prosecutor;
the denial of voice in telling their own story as victims have no control over their narrative in the course of testimony and cross-examinations;
the denial of the right to protection from self-harm as victims are required to submit to public interrogation;
the invasion of their privacy as victims are subject to intrusion by both the prosecution and defense. (p. 23–25)
To pour salt on a wound, victims are meanwhile left to retain counsel themselves, unlike criminal defendants who are provided legal protection through court-mandated attorneys.
For Liss, it’s no wonder survivors often don’t report. Who wants to go through the whole criminal justice process if it ends up retraumatizing you?
Bazelon and Green (2020) list the many reasons why rape and sexual assault victims do not report to law enforcement as recorded by the National Sexual Violence Resource Center: “concern for not being believed, fear of the attackers getting back at them, embarrassment or shame, fear of being blamed, pressure from others not to tell, distrust of law enforcement, belief that there is not enough evidence, and desire to protect the attacker” (p. 17). They add: “Undocumented immigrants in particular tend to under-report crimes out of fear of adverse immigration consequences” (p. 17).
“To me, it’s like there needs to be this third option,” Liss says in the aforementioned interview. “Without this third option, it feels like the only other options are to put yourself through this really hard legal process in the hopes that your assailant will go to prison, or say nothing as if it never happened and go home and navigate the trauma yourself. Those feel like lose-lose options to me.”
“Restorative justice may be employed at various stages of a criminal process,” Bazelon and Green (2020) write, but it is typically unavailable until after criminal proceedings (p. 23). In some jurisdictions, “restorative justice follows a defendant’s guilty plea and its outcome is factored into the judge’s sentencing decision” (Bazelon and Green, 2020, p. 23).
For instance, Bazelon and Green (2020) note:
A program established in 2015 by U.S. District Court Judge Leo Sorokin in federal district court in Boston requires defendants facing serious though non-violent felony charges to plead guilty before entering into an 18-month long program that includes drug treatment, if necessary, enrollment in school or obtaining or maintaining a job, and participation in a court-run restorative justice program. Most of the defendants who enroll in this program are facing at least several years in prison. Those who successfully complete the program are usually sentenced to probation. (p. 23)
While this is something to celebrate, such programming, echoing Bazelon and Green, is best utilized as an alternative to adjudication and incarceration — what they call the “carceral solution,” which seeks to get the proverbial bad guy off the street (only for them to re-offend later). That is, it should be offered as an option for victims prior to conviction.
In this vein, RJ advocacy focuses on restorative justice as a significant diversionary tactic for processing violent crime in the same way drug cases are diverted to drug courts where they agree to drug treatment instead of prosecution and potential incarceration (Bazelon & Green, 2020, p. 23). It in this way also functions as a tool for prevention and a resource for an offender’s healthy reintegration into the community with the assurance of no further harm — an outcome that survivors, despite their diversity, all desire (Bazelon & Green, 2020, p. 25).
Bazelon and Green (2020) put it thus:
While at first look, it may seem that criminal punishment is a means to achieving that end, it often is not. The criminogenic effect of prison has been well documented: we know that people who go to prison, particularly maximum security prisons for serious violent crimes, can emerge hardened and more violent than when they entered. Nor do most prisons offer the programmatic and educational opportunities for the insight and self-reflection that are necessary for offenders to grapple with their sexually violent behavior — including hearing directly from the victim or surrogate victims — and take the steps necessary to change that behavior. (p. 36)
The logic for using RJ as part of prevention efforts has evidence-based backing as a study of RESTORE, a federally-funded program in Pima County, Arizona, will testify. From 2004 to 2007, RESTORE worked with local prosecutors to provide victims of felony and misdemeanor sexual assaults the chance to choose RJ over the traditional criminal process (Bazelon & Green, 2020, p. 39). Of the 22 cases accepted over a three-year period, two-thirds of felony and 91% of misdemeanor offenders completed the program successfully with more than 90% of the victim participants expressing satisfaction that justice was served; the study also revealed a 14% drop in victim PTSD (Bazelon & Green, 2020, p. 39).
Evidence of other success in deploying RJ as an alternative to the criminal legal process stems from New York City’s ongoing Common Justice program, which was started in 2008 by the Vera Institute in partnership with the Kings County District Attorney’s Office in Brooklyn (Bazelon & Green, 2020, p. 38). The program’s offenders do not include those responsible for sexual assault, but it does offer RJ as an alternative for those who’ve committed other violent crimes. Despite what we might expect given the prosecutorial narrative around what victims (should) want when it comes to justice, 90% of victims presented with the RJ-as-alternative option through Common Justice choose it “even though offenders will not be sent to prison and will have their felony conviction removed following successful completion of the program” —which boasted a recidivism rate of only 6% in 2018 (Bazelon & Green, 2020, p. 38).
Finally, in Australia, which uses RJ practices in juvenile sexual assault cases, violent offenders who underwent RJ programming were 40% less likely to re-offend than those who endured the criminal justice system (Bazelon & Green, 2020, p. 37).
The point is this: RJ is possible despite what victims’ rights advocates or your standard prosecutors believe about it letting offenders “off the hook” or commissioning criminal re-offense. And there’s no reason to believe it cannot function for all crimes, including those of a sexual nature.
“Ultimately, it is up to the prosecutor to decide what course of action to take,” writes Bazelon and Green (2020). “But barring exceptional cases […] there is nothing to suggest that a prosecutor who is giving priority to the victim’s interests should not honor a victim’s restorative justice preference” (p. 37).
Unlike the criminal justice system, RJ provides its practitioners with ample agency to reclaim the humanity lost not only to those who violated them but to the revictimizing whims of an adjudicative criminal process which provides little to no room for accountability on the part of the person who caused harm.
The prospect of punishment as healing, meanwhile, is ill-conceived. As Bazelon and Green (2020) note, there is little evidence to suggest punishing an offender to the maximum extent of the law alleviates victim pain on top of the fact that rape and sexual assault conviction rates remain “notoriously low” at less than 1 percent (p. 29).
Thus, what bases do victims have for trusting in an already broken system?
New York-based attorney, Erika Sasson, who was a federal prosecutor in Canada before a 10-year stint with the Center for Justice Innovation, a nonprofit devoted to providing community-based resources and programming for navigating the justice system, witnesses the actual promise of RJ firsthand in her work, which now centers on designing and facilitating restorative justice practices.
In an article Sasson published in Vox, she recounts the healing that occurred between the family of someone who had been killed by a gunshot and the person who caused harm in a process mediated outside of the courtroom.
Over the course of nearly a year, Sasson worked with the victim’s husband to see what he needed for healing.
“He repeatedly expressed the need to meet with the defendant, a young man in his early 20s,” Sasson writes. “He wanted to understand what had happened that day; he thought he may even want to forgive. Either way, the kind of faceless prosecution that is the norm in the criminal justice system wasn’t enough for him.”
Sasson then met with the young man responsible for the murder to see if he would be willing to participate in such a process.
“This took time,” Sasson writes. “Over many months, he and I, as well as my co-facilitator, tried to unearth how he had ended up at this terrible crossroads. We talked about all kinds of things, sharing information about our lives and developing a real connection. Eventually, we had built enough trust to begin the process of exploring how he might accept responsibility for his actions.”
After nine months, following the defendant’s guilty plea but before his sentencing, a group which included Sasson, her co-facilitator, the young man responsible for the crime, his mother, and the victim’s husband, met without lawyers present to bring some resolution to the ordeal.
“When we had finished, the police officer in charge outside the door — who had, earlier that day, rolled his eyes at our ‘kumbaya meeting’ — said to my co-facilitator and me, ‘In nearly 40 years of working homicides, I’ve never seen anything like this.’”
With that, the young man’s sentence was lowered once back inside the courtroom.
“We know that mass incarceration at the gargantuan annual cost of $270 billion in the United States has done little to reduce violent crime or create healthy communities; in fact, for the most part, it has done the opposite,” writes Sasson. “Yet politicians capitalizing on overhyped fears of violent crime are pushing for a return to an even more punitive criminal justice system.”
“Undeterred, in communities around the country, people are working to build new strategies for responding to harm focused on safety, healing, and accountability,” Sasson concludes. “There are opportunities to create dialogue centered in community, without any system involvement, and others that create off-ramps for people embroiled in the justice system, all while centering — not forgetting — the victims of crime in the process.”
And this is happening not only in the arena(s) of criminal justice but also in the field(s) of education where schools are starting to use RJ — much to the benefit of BIPOC, who are most vulnerable to the cycles of violence which our current criminal justice system keeps in perpetual motion.
In New Mexico, for example, the state department of Public Education has begun testing RJ as a new disciplinary model in multiple districts, expanding its reach from 12 to 24 schools in the coming year, according to New Mexico In Depth, a nonprofit and nonpartisan news organization.
“In addition to ‘circles of sharing [which include teachers, staff, and students],’” Bryant Furlow of In-Depth reports in the Santa Fe New Mexican, “the program promotes communication through classroom respect agreements to build a greater sense of community among students. When rules are broken, it focuses on mediation. And it seeks to help students after they’ve been punished, to understand the root of their misbehavior and how they might do better.”
Furlow notes proponents see RJ as a more effective and “less harmful disciplinary approach than removing kids from school through long-term suspensions or expulsions, which are tied to lower graduation rates and a higher risk of incarceration.”
“That’s particularly important for Indigenous students,” Furlow adds. “In New Mexico, Native American students are expelled far more often than any other group and at least four times as often as white students” as disclosed in an investigative report by In Depth.
Restorative justice is a community-based spoke in this systemic wheel, a fissure in the school-to-prison pipeline through which BIPOC are siphoned at a disproportionate rate. It serves the diversity of victims’ needs, recognizing that victims themselves are diverse, and promotes public safety while reducing the possibility of further violence (Bazelon & Green, 2020, p. 40).
Prosecutors, school administrators, and teachers take note: Robust restorative justice programs are ultimately tools that work toward violence prevention as opposed to its mere intervention. Given the failure of other disciplinary options that have resulted in further offense and, ultimately, mass incarceration, RJ stands out as a promising alternative to criminal punishment that deserves a real chance.
Further Resources Ampersand Restorative Justice, https://ampersandsrj.org/.