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Transforming campus culture to prevent rape: The possibility and promise of restorative justice as a response to campus sexual violence

Oct 14, 2013

From the article by Alletta Brenner on The Harvard Journal of Law & Gender Blog: 

Though feminists have long argued that rape is linked to sex discrimination, legal responses to rape tend to ignore the ways that social and cultural norms contribute to sexual violence. One exception, however, exists in the context of federal anti-discrimination law under Title IX, which applies to colleges and universities that receive federal funds. Under the legal framework established by Title IX, rape constitutes a form of severe sexual harassment, to which educational institutions are legally obligated to respond.An institution’s failure to do so is considered evidence of sex discrimination and may subject it to both federal penalties and civil liability. Recently, this obligation was further strengthened by the passage of legislation that codifies particular aspects of what campus grievance processes for rape survivors must include and requires schools to take affirmative steps to transform campus culture to prevent rape.

...The idea of using restorative justice in rape cases is controversial. However, some feminists have come to strongly advocate for it, arguing that it actually provides a more empowering and survivor-oriented approach than the traditional criminal justice system:

[Restorative justice] condemns violence in meaningful and consequential ways, permits telling stories, encourages admissions of offending, validates [survivors’] experiences and reassures them that they are not to blame, provides more options for those who do not want formal prosecution, and provides space for airing upsetting aspects of the incident that may not formally qualify as crimes and therefore would be excluded by any other legal process.

In other words, restorative justice offers the promise of a process that is more responsive to the needs of victims. Such benefits are particularly meaningful for those who have suffered sexual violence. Critically, restorative justice offers rape survivors the opportunity and space to speak openly about what happened to them, to have their account recognized and validated by the broader community, and to take an active role in determining on their own terms what kind of redress is appropriate. In doing so, it acts as a response to the disbelief and dehumanization that often accompany being a survivor of sexual violence, providing survivors with an avenue to regain a sense of control over their healing. Hence, while the use of restorative justice to respond to sexual violence is a relatively novel idea, a handful of organizations have begun developing special restorative justice programs for this purpose.

...In order to ensure that survivors are protected and that proceedings are equitable and fair, any restorative justice program dealing with campus rape cases should adopt measures developed by the programs discussed above in Part IV. This includes giving survivors control at each juncture over whether the process should go forward; using well-trained facilitators who are not only familiar with the restorative justice process but also well versed in issues related to sex discrimination and sexual assault; and preparing participants in advance. Participating stakeholders should include the students involved, their families, close friends, trained counselors, and members of the faculty who have strong relationships with the students.

Restorative justice aims to achieve substantive equality between participants. As such, facilitators must recognize the effects of victimization and take measures to account for offenders and survivors’ different vulnerabilities and justice needs. While the conferencing process can be intense, control must be exercised throughout to ensure the environment never becomes hostile or succumbs to uneven power dynamics between parties. If necessary, a conference could extend over multiple sessions to avoid overwhelming participants and ensure that it is not rushed. Likewise, once an agreement has been reached, program facilitators should always follow up to ensure that it is being kept and, particularly in the survivor’s case, that ongoing needs and issues continue to be addressed.

Restorative justice must always be voluntary and non-coercive for all parties involved. It should never be the only remedy available or preclude parties from pursuing other avenues. Rather, a restorative justice program for campus acquaintance rape could work in tandem with existing remedies—as an alternative to traditional grievance procedures, or in conjunction with, parallel to, or following other more traditional methods of adjudication. For example, as a hybrid approach, once a student offender has been found responsible through a traditional process, restorative justice could be available as an alternative way of determining what sanctions should be imposed on the offender and what redress provided for the harmed student.

References removed.

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