A briefing paper prepared for the Council on Contemporary Families Defining Consent Online Symposium (.pdf).

The current #MeToo reckoning, following from the decade-long grassroots campus sexual assault movement, underscores the pervasiveness of sexual harm. As the contribution to this symposium by Armstrong at al points out, most surveys find that 20 percent of undergraduates experience sexual assault, yet such assaults remain woefully under reported. A study of 834 undergraduate women at a Midwestern university found that 234 (34 percent) had experienced sexual assault during their time on campus. Of those, only five (2 percent) filed a formal complaint leading to a disciplinary hearing.

There is no other violation on campus that causes so much trauma, but is so difficult to adjudicate. Concrete evidence is rare. Memories are often impaired by trauma or alcohol. Shame, fear and uncertainty make disclosures unlikely. Racial bias too easily creeps in. Offenders are still not held accountable. Campuses are not yet safer. The quasi-judicial systems on campuses cannot overcome these complex problems. Responding to them requires that we resist one-size-fits-all responses.

There is reason to think it is a mistake to premise our entire response to campus sexual misconduct primarily on a serial predator model. Predators exist, but many people who cause harm are not incorrigible. Some do not realize the hurt they have caused; many do not accept that they violated consent. They too easily rationalize their behavior, reinforced by a broader set of cultural norms that objectify women, trivialize sexual encounters, and indulge drunken hook-ups. By understanding the real-life contexts of assault, we can generate better methods for processing the wide range of cases that occur.

The majority of campus assaults happen behind closed doors and often begin with some level of mutual sexual consent. Consent to kissing does not mean consent to sexual intercourse. But administrators who adjudicate sexual assault complaints must sort through conflicting stories told by people with impaired memories, typically without corroborating physical evidence, and come to a finding that has significant consequences for both parties. Even those deeply committed to reducing sexual violence face a daunting administrative task.

Many incidents of misconduct are perpetrated by one friend or acquaintance upon another; frequently by people who are too drunk to think and communicate clearly; sometimes by people with little sexual experience and much sexual anxiety; sometimes after undue badgering by peers who prioritize sexual quantification over healthy relationships. And such people are swimming in a sea of sexist and sexually-objectifying pornography and other media that reinforce toxic masculinity, perpetuate rape myths like “no means yes,” and highlight stories of high-ranking officials (like presidents and Supreme Court justices) who glibly dismiss accusations of causing serious sexual harm. The problem is too large to suspend our way out of it, although we try.

A recent history of seeking to address campus sexual assault

For nearly a decade, campus administrators have responded to the grassroots student movement and to federal oversight, both demanding greater attention to campus sexual violence. Campuses have revised their policies and procedures to make it easier for students to report assaults and file complaints. Some have walked to the edge of due process in an attempt to make it easier for accusers to be heard. Yet sexual violence continues to remain highly underreported. Few survivors avail themselves of these new, legalistic hearing processes. And when they do, many remain dissatisfied with the outcome.

Evolving Responses

The student movement that raised awareness about campus sexual assault a decade ago initially demanded that university administrators take the problem seriously and punish students with suspension and expulsion. But this movement has evolved. As an alternative to punishment in some cases, many survivors are now asking for a process that provides accountability through acknowledgment of harm and pathways to prevention. Often, they want their stories believed, for the student to apologize for the transgression, and to be reassured that the behavior will not be repeated.

Leading student sexual assault activists such as Sofie Karasek, an assault survivor herself, call for new approaches: “We need institutional responses to sexual harm that prioritize both justice and healing, not one at the expense of the other.” At Princeton University, student activists recently issued a set of 11 demands. Number three on their list: “The establishment of an opt-in restorative justice track for survivors who wish to avoid the process of Title IX proceedings.”

Is it possible to create conditions where a student who has caused sexual harm can admit fault and take responsibility for it? In a world that simultaneously celebrates sexual conquest and vilifies sex offenders, how can someone be held accountable for crossing an unacceptable line without paying a permanent price in social exclusion? Is there an alternative to our current adversarial model, which drives a permanent wedge between victim and offender and nearly forces accused students into an entrenched position of defensive denial?

Restorative justice alternative

restorative justice (RJ) approach to campus sexual harm is a radical alternative to current systems. It is premised on the optimistic possibility that many people who might cause harm can learn to be better sexual partners, to authentically and transparently communicate during sex, and to attend to nonverbal cues that indicate (or fail to indicate) consent. It is also premised on the notion that people who cause harm can regret it and can want to do something to take responsibility and regain others’ trust in them—something restorative theorists call “earned redemption.”

Two principles are fundamental to a restorative approach. (1) It is a voluntary option reserved only for victims and accused students who agree to engage in it; RJ does not replace current systems. (2) The starting place for an RJ process is the accused student’s admission of causing harm; it is not an adversarial process subjecting the survivor to an argument about facts. The purpose is straightforward: it is a process designed to identify harms, needs, and obligations to try to make a terrible situation better. Although restorative justice is often equated with a facilitated dialogue between victim and offender, it is better understood as a philosophical approach focused on identifying and repairing harm. The approach has a clear intention, but not a fixed practice. Face-to-face dialogue is not required and many survivors would not choose it. Nevertheless, they may still wish to communicate their needs and have the person who caused harm acknowledge their wrongdoing and do something to help right the wrong.

A whole campus model of restorative justice includes three layers of action. The foundation is skill-building for interpersonal competence. Community-building circles are structured but intimate dialogues about topics of consequence, such as the nature of consent, hook-up culture, toxic masculinity, or the close association of drinking and sexual violence. In these dialogues, students do not simply get told the rules, but share with each other their honest concerns and set clear normative standards for their micro-communities, such as a first-year seminar, residence hall floor, or athletic team. This foundational layer is grounded in a public health model of primary prevention.

A second layer includes restorative responses to incidents of sexual misconduct and harm. Students may choose to participate in a restorative process as an alternative to a formal hearing, or more likely, as an alternative to doing nothing at all. The goals are accountability, student learning and development, safety planning, and personal healing. Such responses are not limited to the key stakeholders, since the fallout from such incidents of harm often extends into their larger peer groups. And they are not limited to interpersonal harms, but may include restorative responses to sexist misconduct such as “rape chants” and offensive social media posts that have a deleterious effect on campus climate.

A third layer of restorative response attends to the messy process of reintegration after a student has been found in violation of a campus sexual misconduct policy and suspended for it. The suspension itself may satisfy retributive demands but it rarely provides reassurance to the survivor or broader campus community that the student has learned anything from the sanction and will be responsible moving forward. Circles of Support and Accountability (CoSA) are a restorative model based on a highly successful model for managing sex offender reentry from prison. Campus CoSAs are groups of trained volunteers that meet with the returning students, often on a regular basis, to simultaneously provide them with social support to help them successfully graduate and to monitor them and address any early red flags to reduce risk of reoffending.

Powerful objections

There are some powerful objections to the idea of restorative justice. It may not send the message of moral outrage as clearly as retributive justice. It may put survivors in a situation that re-traumatizes them. It may be used by administrators to avoid costly hearings or litigation or bad press. RJ facilitators may be poorly trained or incompetent. These are risks. Rigorous research is needed to assess how serious they are and how effective a restorative approach can be. Nevertheless, the current models seem to be failing many students and restorative justice approaches offer one promising alternative.

The symposium editors sought to clarify a few particulars.

Q: You say that restorative justice doesn’t replace current systems. But it seems that a guy would be very reluctant to participate in a dialogue that involves acknowledging accountability if there was a chance that his confession could be used against him if the woman later files charges. Any provisions to protect him from that?

Yes, this is a significant hurdle. I’m working on a law review article right now that will include a template MOU (Memorandum of Understanding) as an agreement between the campus and the local District Attorney to provide some reassurance for a “reverse Miranda rule”–what’s said in the RJ process won’t be used against them later. Better solutions will require state legislation to protect the confidentiality of the process. In addition, campuses are having students sign confidentiality agreements and/or agree that if they choose the RJ process they would be unable to pursue a hearing later. Finally, according to Coker, some programs are asking students to formally “admit to causing harm,” but not necessarily admit to a conduct or Title IX violation.

Q: Also, you talk about a third layer after a student has been found in violation and suspended. But the first two layers don’t involve such formal punishments. What is the relationship between having this dialogue and then getting suspended, or getting suspended and then having this dialogue? 

It’s an awkward relationship. Reintegration circles are designed to follow from formal processes, not RJ processes. They are meant to address the problem of victim/community anxiety or anger about the return of a student after suspension. I published an article recently that was a case study of one such process. In that case, supporters of the offender were quite angry about how the formal process was handled, alleging racial bias, and a lot of the circle was dedicated to addressing that concern. The circle was also focused on developing plans to manage the student’s mental health and address his wish to study abroad. Of course, reentry circles would also be valuable for social support after an RJ process in which the participants voluntarily decide it is best for the student to take a leave of absence. That’s not a suspension, merely an agreement that the leave is the best way forward.

David R. Karp, PhD, is a Professor of Leadership at the University of San Diego, dkarp@sandiego.edu.