Rape and Restorative Justice

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Rape and other forms of sexual violence are some of the oldest offenses in human history. However, the recent spike in nationally televised rape cases—along with the increasing media attention on rape culture in general—has increased the relevance of rape in modern-day society. While it is logical to assume that this rise in coverage is a reflection of a rise in sex crimes, this is actually not the case; the Rape, Abuse, & Incest National Network (RAINN) reports that, in the past few years, sexual assault has decreased by more than 50% in the United States due to wider knowledge of recognizing patterns and teaching prevention of women victimization (n.d.). Additionally, victims of sexual violence have recently become more vocal about the crimes committed against them, resulting in a higher frequency of arrests (Violence Against Women Act [VAWA], n.d.). The empowerment of these victims to speak up is perhaps due in part to the emergence of restorative justice proceedings in cases of rape and other sex crimes. With the option to take offenders to conference, victims can bypass the potentially humiliating process of traditional court proceedings, and the offenders may experience accountability on a much more personal level.

Traditional Retributive Response

In the past, the traditional criminal justice system has failed to provide satisfactory retribution to those guilty of rape and has instead put the victim at risk of further humiliation with no guarantee of legitimate results (Bryden & Lengnick, 1997; Curtis-Fawley & Daly, 2005; Koss & Achilles, 2008). Bryden and Lengnick (1997) point out that "the case attrition rate in rape cases is shockingly high, and very few rapists are convicted of the crime," (p. 1195). In fact, 97% of offenders serve no jail time at all (RAINN, n.d.). For those who are convicted, the rates of recidivism post-release are also grim: according to an analysis of data performed by Greenfeld (1997), 28% of rapists were arrested for another violent crime within three years of release and, for 8% of those released, the crime was another rape.

The alarming rate of attrition is only one of many reasons why victims are apprehensive about reporting the crime in the first place—society, the media, and the justice system itself all have the tendency to discriminate against the victim (Bryden & Lengnick, 1997; Curtis-Fawley & Daly, 2005). A recent example of this is the Steubenville High School rape case that resulted in a highly publicized trial in 2013. On the night of the incident in 2012, several young men either participated in or documented the repeated sexual assault of a young girl who had consumed a dangerous amount of alcohol. When her case came into the public eye, she was the subject of ferocious attacks on her character, and endless slut-shaming and victim-blaming. As for her attackers, only two of the many involved were tried, given light sentences and, at the end of it all, received media sympathy.

The courtroom, what is theoretically supposed to be the site of justice for those whose liberties have been infringed upon, does not insulate victims of sexual violence from the kind of community and media backlash that took place in the Steubenville case (Bryden & Lengnick, 1997; Curtis-Fawley & Daly, 2005; Koss & Achilles, 2008). In fact, Bryden and Lengnick (1997) provide a number of ways in which the justice system was formerly manipulated (largely by male judges) to "promote victim blaming" (p. 1196) and, while many of these statues have been repealed in recent years, victims of rape continue to suffer their lingering effects: rape could only be considered as such if the victim actively resisted his/her attacker; there was only a real case if the victim's accusation could be backed up by additional evidence; and the jury was warned prior to deliberation of the hazards of false rape accusations.

With all of this in mind, it is no wonder that victims of sexual violence hesitate to report their cases, and often decide to do no such thing at all. The traditional criminal justice system—along with the community and the media—puts the heat on the victim and, in the process, allows many offenders to go free (Bryden & Lengnick, 1997; Curtis-Fawley & Daly, 2005). Even those who are convicted are encouraged to share the blame with their accuser, supplied with the reassurance that 'she shouldn't have dressed like that,' or 'she shouldn't have had so much to drink' (Bryden & Lengnick, 1997).

Restorative Response

The inefficiencies of the traditional retributive response to sexual violence can be credited to its focus on the state over the individual, punishment over restoration, and a faulty perspective on accountability (Haley, 2011; Umbreit, 2000; Zehr, 1990). One of the most important tenants of restorative justice is that crime is defined as a "violation of one person by another" (Umbreit, 2000, p. 3). The restorative response is one based on a much more personal level, viewing both the victim and the offender as individuals in need of their own subjective paths to healing (Haley, 2011; Umbreit, 2000; Zehr, 1990).

For victims, it is a matter of having their needs taken into account and being able to speak up—the latter desire being especially relevant in cases of rape and sexual violence, as victims often feel as though they are being judged as scrupulously as the accused, and that they do not have adequate control over the outcomes of their cases (Bryden & Lengnick, 1997; Curtis-Fawley & Daly, 2005; Koss & Achilles, 2008; Umbreit, 2000; Zehr, 2002). For offenders, the healing begins with a personal acknowledgment of their victims and the acceptance of accountability, followed by engagement in restorative action (Haley, 2011; Umbreit, 2000; Zehr, 1990). With these goals in mind, the passive aspect of the traditional justice system is removed and replaced by an atmosphere in which all parties—as well as the community at large—are working together to solve the problem (Haley, 2011; Umbreit, 2000; Zehr, 1990).

The Forgiveness Project, a U.K. based charity that runs restorative justice programs in prisons, features a number of real-life stories on its web site that are centered on the positive impacts of forgiveness and conflict resolution. Jo Nodding, an English woman who had been raped by an acquaintance, agreed to participate in a restorative justice session with her offender after having taken her case through the traditional criminal justice system ("Jo Nodding", n.d.). Originally, Darren (the offender) pled not guilty to Nodding's allegations, forcing her to take part in an emotionally straining trial ("Jo Nodding", n.d.). Luckily, incriminating DNA samples prompted Darren to admit his guilt, and he was sentenced to jail time ("Jo Nodding", n.d.).

Nodding was approached about the possibility of a restorative justice session, and several years after his incarceration, she and Darren met up face-to-face ("Jo Nodding", n.d.). Of the meeting, Nodding only had positive feedback to contribute to The Forgiveness Project:

As I left that room I felt on top of the world. Meeting him gave me closure, because I had said everything I had wanted to say and I had taken back some kind of control over my life. I know it had an impact on him. I’m not a victim any more, I’m a survivor. I’ve been able to make sure something good has come out of something bad. ("Jo Nodding", n.d., n.p.)

The stories that can be found online from The Forgiveness Project are primarily focused on the constructive impacts of restorative justice for the victim, but there is much evidence elsewhere of similarly constructive outcomes for the offender as well. Daly (2006) performed an archival study of court versus conference cases for youths charged with sexual assault in South Australia. Conferencing, a form of restorative justice that is applied most prominently to sexual assault cases, is a discussion that takes place between the offender, the victim, and a facilitator in charge of making sure that key-points are covered during the conversation (Koss & Achilles, 2008). Daly (2006) found that youths who had undergone court cases, as opposed to conference cases, showed higher rates of re-offense upon release.

More importantly, those who were incarcerated into the traditional justice system were subject to punishment via "escalated penalties," as opposed to rehabilitation focused on accountability and making behavioral changes (Daly, 2006, p. 17). Daly (2006) points out that the court's strategy of trying to scare offenders with the prospect of hazardous prison conditions (a universal tactic), is not as effective at curbing future offenses as restorative counseling.

To reference Nodding's case once more, she reported that Darren seemed to be genuinely affected by their encounter and that he even cried when she spoke of the "terror and confusion" she experienced the day of the attack ("Jo Nodding", n.d., n.p.). Experiences like these, though painful for both parties involved, are perhaps the missing link in the traditional justice system. When the offenders passively receive their sentences and are then locked up without ever having to face their victims ever again, it is possible that the gravity of the crime does not sink in and it becomes easier to consider re-offending.

The Future of Restorative Justice

While the effect of the restorative justice system on sex criminals is a topic that still needs a good amount of investigation and development, the benefits available to victims of rape and other forms of sexual violence are copious and significant. The ability to bypass traumatic court cases and the unfair scrutiny of the public could be enough to influence many rape victims to try their offenders via conferences instead. Further, rape victims have often expressed that they feel as though their rapists receive more rights in the courtroom, especially in the ever-lingering wake of the aforementioned practices in victim-blaming (Koss & Achilles, 2008). In a restorative setting, victims are given a voice that they can feel comfortable about exercising without putting themselves at risk of judgment.

Of course, restorative justice can be applied to other types of crime as well. There is therapeutic value for victims of all sub-sects of crime in being granted the ability to talk with their offender in an intimate setting, where they are all encouraged to express themselves freely. Furthermore, offenders have the potential to gain a greater perspective on the crimes they have committed and may be less likely to commit repeat offenses later in life. It seems almost illogical to exclude the parties directly involved in the offense, and replace them with third-party professionals who can only speak from second-hand accounts of any given incident—as is the tradition in retributive response.

Finally, it does not seem possible to discuss the potential of restorative justice without expanding on the importance of forgiveness. Forgiveness is much more than just a tired, Christian tenant that many claim to hold in esteem but fail to realistically exercise. In fact, the emotional and physiological implications of forgiveness may be enough to encourage even the most hardened of victims to consider looking on their offenders with mercy (van Oyen Witvliet, Ludwig, & Vander Laan, 2001). Some of the unexpected perks of forgiveness, as detailed by van Oyen Witvliet, Ludwig, and Vander Laan (2001) are: "reduced stress, less negative emotion, fewer cardiovascular problems, and improved immune system performance" (p. 118). While the literature on the effects of being forgiven is relatively lacking, the author posits that offenders are likely not immune to the positive effects of receiving absolution from their victims.

Conclusion

Rape and all forms of sexual violence are intimate crimes that, in a court setting, are not treated with intimate care. Because of the stigma against victims of rape and the high rates of attrition that accompany it, traditional proceedings rarely attain legitimate "justice." Restorative methods breathe new life into a broken system that generally favors those accused of sexual violence over those that have suffered the physical and emotional consequences. By providing victims with a platform to communicate with their offenders in a setting that is not teeming with discrimination, the crimes can then be understood more comprehensively, and the offenders sentenced more appropriately.

References

"Factsheet: The Violence Against Women Act". (n.d.). Whitehouse.gov. Retrieved February 14, 2014, from http://www.whitehouse.gov/sites/default/file

"Jo Nodding". (n.d.). The Forgiveness Project. Retrieved February 14, 2014, from http://theforgivenessproject.com/stories/jo-nodding/

"Statistics". (n.d.). RAINN: Rape, Abuse and Incest National Network. Retrieved February 12, 2014, from https://www.rainn.org/statistics

Bryden, D. P., & Lengnick, S. (1997). Rape in the criminal justice system. Journal of Criminal Law and Criminology. 1194-1384.

Curtis-Fawley, S., & Daly, K. (2005). Gendered Violence and Restorative Justice The Views of Victim Advocates. Violence Against Women, 11(5), 603-638.

Daly, K. (2006). Restorative justice and sexual assault an archival study of court and conference cases. British Journal of Criminology, 46(2), 334-356.

Greenfeld, L. A. (1997). Sex offenses and offenders: An analysis of data on rape and sexual assault. Washington, DC: US Department of Justice, Office of Justice Programs.

Haley, J. O. (2011). Beyond Retribution: An Integrated Approach to Restorative Justice. Wash. UJL & Pol'y, 36, 1. 1-16.

Koss, M., & Achilles, M. (2008). Restorative justice responses to sexual assault. VAWnet: The National Online Resource Center on Violence against Women.

van Oyen Witvliet, C., Ludwig, T. E., & Vander Laan, K. L. (2001). Granting forgiveness or harboring grudges: Implications for emotion, physiology, and health. Psychological Science, 12(2), 117-123.

Umbreit, M. S. (2000). The handbook of victim offender mediation an essential guide to practice and research. San Francisco: Jossey-Bass.

Umbreit, M. S., Vos, B., Coates, R. B., & Lightfoot, E. (2005). Restorative justice in the twenty-first century: A social movement full of opportunities and pitfalls. Marq. L. Rev., 89, 251- 304.

Zehr, H. (1990). Changing lenses a new focus for crime and justice. Scottdale, Pa.: Herald Press.

Zehr, H. (2002). The little book of restorative justice. Intercourse, PA: Good Books.