Restorative justice as a path forward for Title IX cases

Whether one is a fan of the Obama-era Title IX guidance or a critic, the debate about campus sexual assault has been narrowly framed in terms of an adversarial process that leaves only winners and losers, often ending with the “winners” as just as miserable as the “losers” (Mitchell & Wooten, 2016). Adjusting policy and procedure to tip slightly in favor of the complainant or the accused does not remove an intractable dynamic of secondary victimization, collective distrust, frustration, dissatisfaction, and professional burnout. We have made some, but not nearly enough, progress after years of sincere effort to improve outcomes for survivors, to change campus climate, and to ensure student safety:

• Even though policies have been clarified and support systems developed, the vast majority of students who are harmed by sexual misconduct still do not trust the system enough to seek assistance (Holland & Cortina, 2017).
• Adversarial processes heighten divisiveness on campus: students continue to have little faith in the administration and a climate of anxiety persists (Kipnis, 2017).
• With formal hearing processes required to make highly consequential decisions typically with inadequate evidence, outcomes are often affected by adjudicator bias (Gerson & Suk, 2016).
• In a zero-sum, high stakes grievance process, an accused student is driven to deny responsibility rather than accept it (Koss et al., 2014).
• Campuses are seeing more litigation as many students question the fairness of the hearing process (Pavela, 2017).
• If an accused student is poor or black, the likelihood that they would be found in violation increases. Hiring a lawyer can cost a student tens of thousands of dollars, a fee that is inaccessible to most, especially students of color (Yoffe, 2017).

Restorative Justice as a Path Forward

The Campus PRISM Project (Promoting Restorative Initiatives for Sexual Misconduct) is comprised of an international team of researchers and practitioners committed to reducing sexual and gender-based violence by exploring how a restorative approach may provide more healing and better accountability. It has a goal to “create space for scholars and practitioners to explore the use of RJ for campus sexual and gender-based misconduct (which includes sexual harassment, sexual assault, and other forms of gender-based misconduct) as an alternative or complement to current practices” (Karp et al., 2016, p.2). Ultimately, the Project gives primacy to addressing harm and to creating the conditions in which it is safe enough for a student who has caused sexual harm to be actively accountable for it rather than perpetuate the conditions that provoke denials and minimization of responsibility.

Figure 1. Whole Campus Restorative Justice Approach to Campus Sexual Assault

The whole campus approach includes three tiers of intervention. Tier I is designed for prevention education and intended for all members of the campus community—students, faculty, and staff. The goal is to build and strengthen relationships, foster trust, and develop interpersonal communication and conflict resolution skills. Circle practice offers an innovation through its emphasis on the intersection of information sharing, education, reflection, and community building. A circle-based approach incorporates the sharing of important technical and legal information that is universal to prevention education, but does so in a meaningful and intimate learning space. Circles provide a context that allows students to collectively analyze their personal views and experiences, at the same time making the learning process individually relevant. In circles, participants develop shared norms and community-based action plans, which can promote individual and group accountability as well as inclusive, restorative responses to harm.

When an incident of harm occurs, Tier II restorative conferences can address the harm as an alternative or supplement to formal/adversarial hearings. As of this writing, the Department of Education’s Office for Civil Rights (OCR) has not provided guidance about the use of RJ for sexual and gender-based misconduct. Nevertheless, some campuses in the U.S. have offered students the opportunity for a restorative conference in response to sexual assault and students are increasingly requesting this option. More commonly, campuses are using conferencing for related harms. Collateral harms are those associated with an instance of direct victimization, but not the most immediate harms to the victim. For example, students may publicly criticize a harmed party in defense of the accused student or, alternatively, attack the accused student or that student’s larger friend group. These ripple effects often play out over social media. Conferencing can also be used for harms to the campus climate, such as when a student group leads a “rape chant” or a fraternity hangs a sexist banner during first year orientation. Campuses can readily use conferencing for precursor misconduct, such as binge drinking, hazing, or other behaviors that create the conditions in which sexual assault is most likely to occur.

Tier III restorative interventions assist with the reintegration of students who have been suspended. Not only are these students anxious about how they will be received upon their return to campus, but the wider community needs reassurance that they will be responsible and committed to causing no further harm. Following the highly successful restorative justice model for sex offenders returning to the community after incarceration, Circles of Support and Accountability (CoSA) can be developed to support returning students. CoSAs meet frequently with the student to provide social support, but also monitor the student’s behavior and intervene early if concerns arise. Concurrently, support circles for survivors can help reduce their anxiety during this transition period. They may be organized to specifically support the survivor of a returning student or be a reciprocally supportive circle of survivors.

The current approach to Title IX complaints is challenged by a focus on determining violations when evidence in sexual assault cases is often weak. The RJ approach focuses less on the violation in favor of identifying and addressing harm. The current approach promotes denials of responsibility, while an RJ approach seeks to increase responsibility-taking. The current approach polarizes participants and campus communities, often leading to litigation, whereas RJ seeks collaborative solutions that avoid adversarialism. RJ is intended to be inclusive, particularly for people with little access to lawyers and other dimensions of social privilege. RJ is intended to offer resolution options that better meet the needs of the key stakeholders, increasing their likelihood of reporting misconduct and pursuing a resolution process. RJ seeks strategies, where possible, to reduce fear, offer social support, and make it possible for students to coexist safely on campus. RJ seeks to provide voice and empowerment to participants, treating them with respect and a belief that their active participation will yield better, more durable outcomes for all.

Campus sexual assault has been a regulatory challenge, but it does not have to remain that way. Restorative justice can provide a new approach that provides accountability for a deeply hurtful form of misconduct, but does so in a way that leverages social support and leads to healing for individuals and a safer campus climate for living and learning. RJ is a promising approach, though it will not be suitable for or chosen by everyone (Coker, 2016; Kaplan, 2017). It must be voluntary and victims cannot feel pressured into a restorative process. Offenders must also willingly participate, which means owning up to the harm they have caused. Implementation will need to be slow and considered, but it is one of the few hopeful innovations available for this vexing campus problem.

Coker, D. (2016). Crime logic, campus sexual assault, and restorative justice. Texas Tech Law Review, 49, 1-64.

Gersen, J. & Suk, J. (2016). The sex bureaucracy, California Law Review, 104, 881-901.

Holland, K.J., & Cortina, L.M. (2017). “It happens to girls all the time”: Examining sexual assault survivors’ reasons for not using campus supports. American Journal of Community Psychology, 59, 50-64. DOI 10.1002/ajcp.12126

Kaplan, M. (2017). Restorative justice and campus sexual misconduct. Temple Law Review, 89, 701.

Karp, D.R., Shackford-Bradley, J., Wilson, R.J., & Williamsen, K.M. (2016). Campus PRISM: A report on promoting restorative initiatives for sexual misconduct on college campuses. Saratoga Springs, NY: Skidmore College Project on Restorative Justice. http://www.skidmore.edu/campusrj/documents/Campus_PRISM__Report_2016.pdf

Kipnis, L. (2017). Unwanted advances: Sexual paranoia comes to campus. New York: Harper Collins.

Koss, M.P., Wilgus, J.K., & Williamsen, K.M. (2014). Campus sexual misconduct: Restorative justice approaches to enhance compliance with Title IX guidance. Trauma, Violence & Abuse, 15, 242-257.

Mitchell, R., & Wooten, S. C. (Eds.). (2016). The crisis of campus sexual violence: Critical perspectives on prevention and response. New York: Routledge.

Pavela, G. (2017). Sexual misconduct litigation update. https://docs.google.com/document/d/1NdB4k736siV6cdIWVNpIzntEizNAQOG5jR0pfCyGVR0/edit

Yoffe, E. (2017). The question of race in campus sexual-assault cases. The Atlantic. September 11.