After Assault, Some Campuses Focus On Healing Over Punishment

Jul 25, 2017
Originally published on July 27, 2017 12:08 pm

On-campus disciplinary processes for assaults that are reported have drawn criticism from both survivors and those accused of assault. According to federal statistics, only about one in six survivors of sexual assault on college campuses report the incident to school authorities.

So some campuses are considering a new approach. The process, called "restorative justice," looks more like a therapeutic intervention aimed at healing than a trial focused on guilt and punishment. Campus administrators are increasingly open to it, despite concern from some activists that it's too soft on perpetrators of sexual assault.

A typical campus adjudication process, aimed at punishing the perpetrator, "wouldn't have really fixed anything," says one rape survivor. "It wouldn't have healed any hurt." She was assaulted her freshman year at a small school in the Northwest, and asked that her name not be used in this story.

The young woman says a disciplinary hearing would have retraumatized her, and created too much pain for too little gain.

"It's kind of that blind rage of like an eye-for-an-eye type thing," she says. "but that wouldn't have been fulfilling for me."

Since an internal trial-like process was all her school officially offered, the young woman started working informally with an adviser on a restorative justice approach to the case. Rather than judging or punishing the perpetrator, they would focus on identifying the harm done, and finding ways to repair it.

"What I really, really wanted was for him to step up to the plate and take responsibility, and to be active in teaching others about this experience," she says.

And, he did. The young woman's rapist offered her a heartfelt, unequivocal apology, and also agreed to her request to turn their experience into a kind of cautionary tale for others.

Together, they produced a video in which each of them describes the assault in raw and relatable terms. Then they took it on the road to show to groups ranging from his fraternity brothers to local high school kids.

Both dressed in black, looking directly at the camera, they say the night started out like so many others on campus: "I thought she was a super cool attractive girl who knew her way around the dance floor," he says.

They danced, talked, and started making out. Then he started to get more aggressive. "He pushed me against the wall and held me on his knee," she says.

She let him know things were going too far for her, and that she did not want to have sex. He says he read her hesitancy as "just nerves ... and her fear of being judged," so he tried to reassure her and pressed on.

That's when she says she felt trapped; he was much bigger and seemed to have all the power. By the end, she describes herself fighting back tears — and rage — as she says he forced her into acts she never consented to.

He ends the video with a simple acknowledgement: "I have raped. I hurt her in a way that I can never take back."

Reflecting on the process later, the young woman says, "writing the joint narrative was really hard because it was digging up memories." But sharing their story publicly was "really therapeutic," she adds, "because those deep, dark secrets that you hold, the more people you show them to, the more light you shed on them, the lighter they become."

She says it also helped her healing process to understand that the young man's intent was not so much malicious as it was misguided, and to see that he now fully understands what he did wrong, and is owning it.

"I've been surprised by how much interest there is across campuses in a restorative approach," says David Karp, a Skidmore University Sociology professor and founder of PRISM: Promoting Restorative Initiatives for Sexual Misconduct. He says the approach has worked well in other cases of student misconduct, and has great potential for sexual assault incidents.

Typically, Karp says, once both parties buy into the process, a facilitator helps them identify the harm done, and how they might repair it. That could include anything from the perpetrator undergoing counseling or taking a voluntary leave to engaging in community service, as in the case of the young man who made the video.

Most campuses are reluctant to even experiment with a restorative approach to these issues, for fear of violating federal guidelines. Strict rules bar mediation of sexual assault cases, and even thought restorative justice is not the same as mediation, schools see it as too close to risk.

Back when he first started promoting the idea, Karp quips, he half expected "tomatoes and hand grenades" would be thrown at him. But now, he says, college and university administrators are increasingly opening up to the concept, and are much less dismissive of the idea as "too soft on sexual assault."

Karp says many survivors are beginning to see restorative justice as a more effective way to get perpetrators to take responsibility for what they've done. The traditional adversarial process, he says, only makes accused students dig in their heels, and deny all wrongdoing.

"We're trying to turn that on its head, and create conditions in which it's possible for someone to really look in the mirror and say, 'this is what I did and I'm going to take responsibility for it,'" Karp says. "Surprisingly, many people are willing to do that. Under the right circumstances, many people are really quite remorseful."

The young man who made the video says once he started to realize what he'd done — after going through a mandatory school training on consent — the guilt was eating him up inside. He jumped at the chance to participate in the restorative justice process, because he saw it as a way to try to make amends: by helping the young woman heal, and, more broadly, by helping to educate others about consent.

After going through the process, he says, "I felt like I could breathe again. I could be human. I wasn't just like this monster that I was feeling like I was in my head."

As he sees it, that's better for everyone, and far more productive than more trials and more expulsions.

"If your school strategy is 'OK, I'm gonna kick this student out,' they've learned nothing," he says. "So now they're going to another school to continue the cycle of hurt."

The federal government, under former President Obama, solicited grant proposals for restorative approaches for campus sexual assault. The Trump administration calls the idea "promising," and plans to award some grants this fall.

But some advocates are urging caution.

Activist and survivor Emma Sulkowicz says the approach is not appropriate for everyone. Sometimes, she says, trial and punishment are called for, as in the case of a man on her campus who was accused of several assaults.

"I think this person in particular, given his track record of person after person after person ... is a sadist in the truest meaning of that word," she says. "So we just wanted him to get off campus."

Sulkowicz also worries about who will facilitate the conversations. She says campus administrators seriously botched her trial process, asking ignorant and insensitive questions. She questions how they will manage the more nuanced restorative justice approach.

That concern is shared by Amy Foerster of the National Association of College and University Attorneys.

"It is an issue of training," Foerster says. "And you can do more harm than good if you have the wrong person doing it."

Foerster is also concerned that survivors might feel pressured into a restorative option rather than a disciplinary one. And, she says, accused students might be putting themselves in legal jeopardy, if what they say during the restorative process can be used against them later in court. So Foerster has advised Bucknell University, where she is general counsel, to hold off.

Still, the approach is gaining momentum. A task force for the American Bar Association recently endorsed the concept. And even longtime skeptics are beginning to warm up to it, including George Washington University Law School Professor John Banzhaf, who once dismissed restorative justice as "too kumbaya."

"Whatever we're doing now, it ain't working," Banzhaf now says. "Nobody likes the results. So let's try it. If this new-agey touchy-feely stuff doesn't work, fine. We can try something else. But by all means, let's at least try it."

In the meantime, the students involved in the sexual assault at their small school in the Northwest continue to share their story, hoping to show the power of restorative justice for both healing and redemption. They say if their painful journey can provide a roadmap for others going through the same thing — or even prevent an assault from happening – that would be healing in and of itself.

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KELLY MCEVERS, HOST:

In many cases of campus sexual assault, what victims say they want most is to get their assailants expelled so they never have to see them again. But some survivors say it would actually help their healing more if the offender took responsibility and apologized. That's usually closer to a pipe dream than a possibility. But some campuses are beginning to experiment with a process that aims to do that, getting students together for a brutally honest face-to-face reconciliation. It's called restorative justice.

It looks more like a therapeutic intervention than a trial. NPR's Tovia Smith reports it's gaining interest as the Trump administration is rethinking federal policies about campus sexual assault. And a warning, her story does include a description of an assault.

TOVIA SMITH, BYLINE: To many, it's the ultimate indictment of how campuses are handling cases of sexual assault that so few victims bother reporting what happened to them.

UNIDENTIFIED WOMAN: It wouldn't really have fixed anything. And it wouldn't have healed any hurt.

SMITH: This woman, who asked that her name not be used, was assaulted as a freshman. She says reporting it and going through a campus adjudication hearing to get the guy punished felt like too much pain for too little gain.

UNIDENTIFIED WOMAN: It's kind of that blind rage of like an eye for an eye type of thing. But that wouldn't have been fulfilling for me.

SMITH: Since that kind of trial-like process was all her school officially offered, she started working with an advisor informally on an alternative restorative justice approach. That process focuses less on judging or punishing the perpetrator and more on identifying the harm done and ways to repair it.

UNIDENTIFIED WOMAN: What I really, really wanted was for him to step up to the plate and take responsibility and to be active in teaching others about this experience.

(SOUNDBITE OF ARCHIVED RECORDING)

ALI: So this is me doing that. I have raped. I am a rapist.

SMITH: The perpetrator, who we're identifying only by his middle name, Ali, to help protect her privacy, complied. And he gave her the apology she wanted. He also agreed to turn their experience into a kind of teachable moment for others. And together, they produced a video to take on the road to everyone from his frat brothers to local high school kids.

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED WOMAN: Please, see us...

SMITH: Looking into the camera, they each offered their take on how the assault happened in a way that's raw and relatable.

(SOUNDBITE OF ARCHIVED RECORDING)

ALI: I thought she was a super cool, attractive girl who knew her way around the dance floor. We started making out and...

UNIDENTIFIED WOMAN: And he pushed me against the wall and held me on his knee. I don't want to have sex, I say.

ALI: I was reading a lot of her hesitancy as nerves.

UNIDENTIFIED WOMAN: Can't stop him, too big, too powerful, the tears are starting to come.

ALI: I explained that I wouldn't judge her and it would be fine.

UNIDENTIFIED WOMAN: He would not let me up.

Writing the joint narrative that we wrote was really hard 'cause it was digging up memories. But then reading those out loud was, every time, really therapeutic. Just, like, those deep, dark secrets that you hold, the more people you show them to, the more light you shed on them, the lighter they become.

DAVID KARP: I've been surprised by how much interest there is across campuses in a restorative approach.

SMITH: Skidmore College Professor David Karp started promoting restorative justice for sexual assault after seeing it work in other cases of student misconduct. To start, he says, both parties need to buy in. Then a facilitator helps them figure out what would help repair the harm. It could be counseling for the perpetrator or a voluntary leave or, as in Ali's case, community service.

Karp says the current interest in using a restorative approach for sexual assault is a stark turnaround from just a couple years ago.

KARP: When I started, I was terrified. I thought that when I presented at conferences, you know, it would be tomatoes and hand grenades thrown at me.

SMITH: People tend to dismiss the restorative approach as too soft on sexual assault. But, Karp says, it's actually better at getting perpetrators to take responsibility for what they've done than the adversarial process. That, he says, only makes accused students dig in their heels and deny all wrongdoing.

KARP: We're trying to turn that on its head and create conditions in which it's possible for someone to really look in the mirror and say, this is what I did, and I'm going to take responsibility for it. And surprisingly, many people are willing to do that under the right circumstances. Many people are really quite remorseful.

ALI: I was - it was just this constant gut feeling of just pain and regret and guilt.

SMITH: Ali says he first started to realize what he'd done after going through a mandatory sexual assault awareness program at school. It was eating him up inside, he says, until the restorative justice process gave him an avenue to try and make amends by helping educate others about consent.

ALI: I felt like I could breathe again, I could be human. I wasn't just this monster that I was feeling like I was in my head.

SMITH: Ultimately, he says, that's better for everyone and far more productive then more trials and more expulsions.

ALI: If your school strategy is, OK, I'm going to kick this person out 'cause they assaulted someone, they've learned nothing. Now they're going to go to another school and continue the cycle of hurt.

SMITH: The federal government under Former President Obama requested proposals to design restorative approaches for campus sexual assault. The Trump administration calls the idea promising and plans to award some grants this fall. But many advocates are urging caution. Activist and survivor Emma Sulkowicz says the approach is not for everyone.

Sometimes, she says, trial and punishment is what's called for, like in the case of a guy on her campus who was accused of several assaults.

EMMA SULKOWICZ: I think that this person in particular, given his track record of person after person after person, I think it's clear that he is a sadist in the truest meaning of that word. So we just wanted him to get off campus.

SMITH: Sulkowicz says she also worries about who will facilitate the conversations. Given how campus administrators botched her trial process, she says, how will they pull off the more nuanced restorative justice approach? That concern is shared by Amy Foerster with the National Association of College and University Attorneys.

AMY FOERSTER: It is an issue of training. And you can do more harm than good if you have the wrong person doing it.

SMITH: Foerster also worries survivors might feel pressured into a restorative option. An accused student, she says, might be putting themselves in legal jeopardy if what they say in a restorative process can be used against them later in court. So as general counsel for Bucknell University, Foerster's advice is hold off.

FOERSTER: We've made the determination that it's not a direction that we're heading in at this time.

SMITH: Still, the approach is gaining momentum. The task force for the American Bar Association recently endorsed the idea. And it's winning over some who long dismissed restorative justice as too kumbaya, as George Washington University Law Professor John Banzhaf put it.

JOHN BANZHAF: Whatever we're doing now, it ain't working. Nobody likes the results. So let's try it. If this new-agey, touchy-feeling stuff doesn't work, fine. We can try something else. But by all means, let's at least try it.

(SOUNDBITE OF ARCHIVED RECORDING)

ALI: I hurt her. I hurt her in a way that I can never take back.

SMITH: Meantime, these students continue to share their story, hoping to show the power of restorative justice for both healing and redemption.

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED WOMAN: I forgive you, I said, even as I laid wracked with sobs.

SMITH: If their painful journey could provide a roadmap for others going through the same thing or even prevent an assault from happening, these students say that would be healing in and of itself. Tovia Smith, NPR News.

[POST-BROADCAST CLARIFICATION: This story refers to Emma Sulkowicz as a survivor of sexual assault, as she considers herself to be. The accused in her case was found not responsible by a campus adjudication process.] Transcript provided by NPR, Copyright NPR.