A Restorative Justice / Transformative Justice Framework for Sexual Assault
How to better make restorative justice work for survivors and their communities
Restorative justice is an increasingly utilized approach to justice that looks beyond punishment by the state. There are three main goals: to ask a wrongdoer to take responsibility for the harm they’ve caused, repair that harm with their community and to the person(s) they harmed, and to discourage the wrongdoer from committing further harm. The ideology stipulates that a harm/crime violates people and relationships, not the state, and that the persons (the stakeholders) most affected be empowered and meaningfully included in any process pertaining to justice [1]. Any restorative or transformative justice process is contingent upon the survivor’s willing participation and interest in such a process, and the wrongdoer’s willingness to admit his guilt, and make amends.
A restorative justice process is a series of facilitated conversations. Because the form that those conversations takes is so widely varied, restorative justice is more of an ideology lacking in formal rules. A mediator or mediators, often volunteers, facilitate the conversation between the victim, wrongdoer, and community. In a circle process, sometimes called a healing circle, the participants – which may include community members that caused secondary harm to the survivor (eg, not believing the survivor, participating in gaslighting or manipulating the survivor post-assault) – sit together in a circle to tell their stories. Both the wrongdoer and survivor will have formal or informal support systems; for example, Mia Mingus has written about transformative justice, and support through pods for the wrongdoer (accountability pod) and survivor (survivor pod) [2]. I’ve created guidance materials for accountability pods and survivor pods that are specific to sexual assault/GBV. Howard Zehr is an early theorist of restorative justice; and his ideas are foundational in almost every explanation of restorative justice I’ve come across.
The communities that traditionally relied on restorative and transformative justice — ancient communities that pre-dated formal legal systems, villages and groups in developing nations, and here in the West, black, indigenous (in Canada, Hawaii, and the US), immigrant, LGTBQIA+ — have historically because they are less privileged. These communities have strong trust networks, rely on one another for their needs, and trust outsiders — such as police departments and the legal system — far less. The ties and reliance necessitate high emotional intelligence, repairing the community, and care for people who were harmed.
As restorative and transformative justice move into communities and workplaces of privilege, there is a new set of challenges. Sexual assault/GBV is often based in power dynamics, and the stratification of privileged communities is strong. Even if a survivor’s story is believed, the community may have other reasons, eg, access to financial capital or the wrongdoer’s social capital, for silencing survivors. It’s easier to replace social ties and pay for help, move between communities, and/or ban a member of a community/workplace out — and too often, the member that is kicked out is the survivor(s) of sexual assault.
Gender-based violence (GBV), violence directed against a person because of that person's gender (women) or violence that affects persons of a particular gender (again, women) disproportionately (footnote 1). The psychology of GVB is more complex than that of most crimes, eg, theft or fisticuffs. One source estimates 75% of survivors of rape experience PTSD, another that 70% of rape/sexual assault victims experience moderate to severe distress — a larger percentage than for any other violent crime — and most survivors report feeling more distress in the aftermath and handling of their GBV than the incident itself [3]. The process has to be one the victims and broader community trust, so they don’t turn to vigilantism or experience increased rape trauma syndrome or PTSD. This necessitates great care, experience, and sensitivity in any process or route to justice for GBV. Having experienced a harmful restorative justice process and supported many, many survivors who have gone through other harmful processes, I believe there are ways in which restorative justice can truly be restorative for survivors of sexual assault/GBV.
What’s gone wrong in the harmful restorative justice processes I’ve experienced first- or second-hand is that the practitioners aren’t experts or trained, are susceptible to the wrongdoer convincing them that the survivor is at fault or the true aggressor, the community’s harmful reactions to the survivor and their story is left out altogether, and the heavy focus of accountability and transformation for the wrongdoer to the exclusion of the survivor, with little to no care for her interests or restoration. Some restorative justice processes go awry when the survivor or wrongdoer interrupt it, and/or it devolves into social media call out and/or private gossip. Others don’t begin because the survivor and/or wrongdoer do not know that their community has a place to report, the survivor and wrongdoer do not trust each other, or they do not trust the community/practitioner of restorative justice to facilitate a process fairly and in a way that’s restorative instead of harmful.
For communities using restorative or transformative justice, parts of the process should be in place prior to harm occurring/reported. Whether or not it’s in writing, all communities have standards of acceptable behavior and a code of conduct. Most would agree that rape and GBV go against their standards, but what constitutes consent, consent violations, GBV (eg, is psychological violence included) or how to handle harassment and micro-aggressions vary widely. For a small community, eg, a group of 15 friends, agreement and understanding would be easier than it would be for a political alliance of a few hundred activists or event organizers inviting a thousand folks to participate in their events. For the larger, standards and/or code of conduct should be formalized and communicated to the members and participants. And for these larger communities, a safe mechanism for reporting sexual assault and GBV that everyone knows about is necessary.
The person(s) taking in reports and facilitating any restorative justice must be carefully selected. In traditional law (and mental health), there are systems of accountability for practitioners, and those practitioners have education and experience. Similarly, practitioners of restorative justice should be held accountable if they err and cause harm to the participants, and practitioner/facilitators should have explicit education and/or experience with a deep understanding of the dynamics of sexual assault/GBV and conflict resolution. People would like to believe that terrible things will not happen to them, and that we get what we deserve (Just World theory; Invulnerability theory), and it’s all too easy for those without high emotional intelligence, experience, and understanding to fall to these tropes of victim blaming, credibility biases, false accusations and belief in rape myths. Those facilitating/mediating a restorative justice should be aware and avoid wrongdoer DARVO: deny, attack, reverse victim - offender, manipulation tactics used by wrongdoers (abusers) to draw attention away from the sexual assault/GBV and to attack the survivors — which increases the survivor’s trauma. Conflicts of interest and similar biases should be addressed before a process as well, and facilitators/mediators should step down if there is a conflict, eg, they are collaborators, coworkers, romantic partners [4], family members, friends, and the like.
The priority in a restorative justice process should be the survivor’s best interests. Most survivors are looking for a sincere apology and some assurance that the wrongdoer will not harm again. When speaking to a survivor and collecting information from them, facilitators should approach with support and kindness, rather than only using the survivor’s story to transform the wrongdoer. A facilitator should ask the survivor(s) what they need for help them with restoration and repair. This should be doable: community/facilitators can’t physically attack a wrongdoer without incurring the risk of arrest and the risk of the wrongdoer and his supporters psychologically/physically/sexually attacking the survivor. One common ask is compensation for a year (give or take) of therapy or a set amount for therapy (depending on the wrongdoer (or community’s) financial ability). During the first meeting with a survivor, the facilitator should ask the survivor(s) about their boundaries around sharing physical space or community (eg, friend groups or physical work space) with the wrongdoer. Do not encourage the survivor(s) to be in a physical mediation or in a room with the wrongdoer once they say no – instead, a facilitator can work with proxies or through support and accountability pods. It’s also important to create physical and psychological safety for the survivor(s) - the survivor should have a support group/network — here are some resources they can peruse, and I’ve also written some guidance for people who supporting survivor or part of a survivor support pod.
The next step in a restorative justice process would be to speak, with empathy and kindness, and while remembering that they are human — with the wrongdoer. The process may fail here or shortly after: rather than evidence, witnesses, and conclusive investigations, restorative justice is contingent upon the wrongdoer’s admission of guilt (and the survivor’s story). A wrongdoer is more likely to confess if the ask is framed gently, eg, speaking to the specifics of the actions they are accused of instead of using words like rape, sexual assault, or abuse. A confession may not be forthcoming during the first conversation. The wrongdoer would have to trust the facilitator and community (including the survivor(s)) in that the repercussions for their confessions do not subject them to punishment (eg, a confession and accountability wouldn’t be encouraged in the traditional legal system because it could worsen the consequences). The wrongdoer should work with a therapist, accountability coach or other experienced expert, and there will be difficult, humbling moments, in which they will have to face one/some of their worst actions, and also address the underlying causes and inner demons that lead them to that.
That expert can help determine when the wrongdoer is ready for the facilitated conversation(s) to begin. How those conversations go and what happens next depends on the specifics of restorative/transformative justice process (eg, circle, pods, etc), and the survivor, wrongdoer, community, and people supporting the survivor and wrongdoer. That being said, I’ve written some guidelines for accountability on my website. These three pieces (the two guidance pieces and this article) provide a basic framework for the process.
There are no guarantees that a restorative justice process will succeed in its three goals. Where I can see a thoughtful restorative justice being truly helpful is in reducing the secondary/aftermath trauma/PTSD that survivors experience — in asking for what a survivor needs to feel as restored/righted as possible, informing and educating the community and survivor support network of the dynamics of sexual assault/GBV, which can mitigate trauma after the assault and result in the community taking steps to ensure greater safety in the future.
The greatest weakness is discouraging a wrongdoer from committing further harm. Taking accountability for wrongdoing isn’t per se going to lead to someone not doing wrong again. A wrongdoer may be sincere in his efforts to engage in a difficult, humbling process, and it’s likely some absolutely are — or he may participate to regain the trust of those around him and remain within his community. Some communities accept the completion of a private accountability process, in which the community at large isn’t informed and then they treat the wrongdoer as missing stairs to be secretly managed. I believe that restorative justice should not operate in secrecy, and secrecy is counter to true accountability. The community/others should be informed. However, rather than “informing” through gossip and social media, the information should be conveyed thoughtfully, by and through trusted channels, and in non-antagonistic ways, in the interest of mitigating further harm to all parties.
I question whether or not a wrongdoer — especially the methodical serial predator, who pushes boundaries, gaslights — grooms and DARVOs his victim(s)— and has sexually/physically assaulted several people over a course of years can be transformed through a process, or even through enormous life changes or consequences. There are several theories about the causes of perpetration of gender-based violence and sexual assault, including insecure attachment, anti-social personality disorder, narcissistic personality, and childhood trauma (higher ACE - adverse childhood experiences - scores)[6] — conditions for which the mental health field has no definite cure. Many wrongdoers acknowledge they did not have consent, but continue to cause harm, which implies their behavior rooted in unconscious privilege and entitlement and/or adverse childhood experiences, not controlled nor rational, and resistant to education and deep emotional work [7].
And here, things get hairy and super complicated. Keeping one’s community safe is imperative, but allowing the wrongdoer to simply move onto a new community (of potential victims) isn’t great either. It’s impossible to know if a wrongdoer will do wrong again, but the chances seem high (serial rapists self-report 5.8 rapes each, per Liask’s study, which is cited in footnote 7). Only twenty-five out of a thousand rapists (wrongdoers) is convicted, and in California, ninety-six of sexual assault isn’t reported (per a lecture I attended by a psychologist at the California Sex Offender Management Board) so whether or not you agree with carceral systems or want an alternative, we need to do something in addition to our legal system to stop known wrongdoers. Restorative justice is one attempt to do something, and even when restorative justice doesn’t discourage the wrongdoer, it should be restorative for the survivor and community, when done properly and thoughtfully, and can bring awareness of safety and the importance of preventing sexual assault/GBV to a community and its individual members.
Citations —
Footnote 1: The hip new term for rape/sexual assault/domestic violence/physical abuse is gender-based violence, which works because covers all of the aforementioned harms and correctly implies that these harms are based in gender, privilege, and inequality. Most survivors of rape, severe sexual assault, and severe physical abuse are women. However, non-binary and trans folks (which make up a smaller percentage of the population than cis-gendered folks) are also disproportionately affected by these issues, with an estimated one of four non-binary folks surviving sexual assault. Men and boys also experience sexual assault, but at an estimate lower rate than women and non-binary/trans folks.
Footnote 2: Mia Mingus has written about pods on the Bay Area Transformative Justice Collective website and the SOIL Transformative Justice Project site.
Footnote 3: The source of the stats are cited on my website, under citations. The distress arising from the aftermath/handling is something I’ve universally heard from the approximately 100 survivors I’ve spoken to; and something one of my mentors (an indigenous sexual assault advocate with over thirty years of experience) tells me she has repeatedly heard as well).
Footnote 4: This Time magazine article discusses a restorative justice/mediation which went badly. The mediator was not trained/educated in mediation or law, and had a clear conflict of interest in that she was dating the wrongdoer/accused during the mediation and at the time the incident took place.
Footnote 5 (was removed): Here are some stories of restorative justice processes, and of processes that are interrupted. This piece was written by an experienced sexual integrity (accountability) coach (http://thenewmodality.com/the-nitty-gritty-how-the-transformative-justice-systems-of-bipoc-and-activist-communities-are-influencing-the-counterculture/)
Footnote 6: Marshall, W.L. (1989). "Intimacy, loneliness and sexual offenders". Behaviour Research and Therapy. 27 (5): 491–504; Bamford, Jennifer; Chou, Shihning; Browne, Kevin D. (May 2016). "A systematic review and meta-analysis of the characteristics of multiple perpetrator sexual offences". Aggression and Violent Behavior. 28: 82–94; Baumeister, Roy F.; Catanese, Kathleen R.; Wallace, Harry M. (March 2002). "Conquest by Force: A Narcissistic Reactance Theory of Rape and Sexual Coercion". Review of General Psychology. 6 (1): 92–135.
Footnote 7: Many people who have assaulted say they knew their actions were wrong/non-consensual. This is what I’ve heard, others working on resolving sexual misconduct have heard, and whatLisak’s study on self-reported rape bears out (that is, people who assault will admit they were aware their victims did not consent, but will notcall it rape).