Koss, 2006, 1 Restorative Justice for Sex Crimes Outside the Context of Intimate Partner Violence Mary P. Koss Founder and Principal Investigator, RESTORE Program Regents’ Professor of Public Health University of Arizona
Many people have questions or are confused about what restorative justice is and whether it does justice to victims. This article attempts to clarify these issues. It focuses on sex crimes outside the context of longstanding relationships. Thus, marital rape is explicitly excluded. Admittedly this is an arbitrary distinction that oversimplifies women’s real experiences, yet it is consistent with how sexual assault and domestic violence are addressed within state criminal statutes. Five topics are considered. First, victims’ survival needs and moral justice needs are described and the large group of community providers and policy makers who already participate in “restoring” victims is identified. Second, contemporary obstacles experienced by sex crime victims’ in their quest for justice are highlighted using data from national surveys and criminal justice system performance data. Third, retention of sex crime accountability within the conventional justice is defended contingent on extensions in the menu of services to better meet victims’ identified needs. Fourth, a demonstration program is described that implements a justice-system based restorative conferencing model for selected sex crimes. The article concludes by noting the barriers faced by those dedicated to expanding justice choices for sex crime victims and suggesting an action strategy.
Koss, 2006, 2 Victim needs and community responses Victims of sex crimes have two major categories of needs. Survival needs include safety, physical health, economic issues such as housing and employment, education or retraining, and immigration problems. Moral justice needs involve human’s innate motivation to right wrongs. Victims say their needs for moral justice can be achieved when they have input into decisions and remain informed about their case, receive response without delay, have a chance to tell their story without interruption by hostile questioning, receive validation, and shape a resolution that meets their material and emotional needs. The claim by restorative justice practitioners that they “repair harm,” overstates what justice can accomplish because it ignores survival needs and the umbrella of community providers who are already responding through the following services: medical care including forensic examinations, mental health treatment, and counseling. Survival needs may also require legal aid including non-tort civil actions to resolve educational, employment, and financial problems. Other avenues exist to achieve moral justice as well including conventional criminal justice responses and civil actions for monetary damages. Barriers to Justice How well is conventional criminal justice working for rape victims? The National Violence Against Women Survey identified 2594 separate rape incidents among the 8000 female respondents. The numbers of these incidents that were reported, prosecuted, convicted and jailed were 441, 33, 13, and 9 respectively. Local data for Tucson, AZ, show that in 2003, 75% of felony rapes and 84% of misdemeanor sex crimes were not investigated by law enforcement beyond taking the initial victim report. When
Koss, 2006, 3 conventional justice works for rape, it is typically only for serious injury crimes perpetrated by strangers. The anti-sexual violence movement has achieved major law and policy reforms dating back to the 1970’s including expanding definitions for rape, removing corroboration requirements, establishing rape shield protections, opening avenues for tort civil action, and increasing punitive responses for sexual assault (longer sentences, sex offender registration, community notification, and civil commitment). Sadly, legal scholars have demonstrated through analysis of criminal justice system performance data across the decades that these reforms have had no significant impact in stemming the flood of sexual assaults that leak from the pipeline before justice is served. Furthermore, it must be emphasized that these hard-won sanctions come into play only when cases proceed through sentencing. Visiting state-maintained on-line sex offender registries is comforting, but the persons profiled there account for fewer than 4 percent of sexual assaults committed against adult women. The conventional justice system has attempted to become more responsive to victims by implementing rights to make an impact statement and the establishment of victim compensation schemes. Like sanctions, victim restoration schemes are available only in the small percentage of cases that are prosecuted. The performance of civil tort actions for sexual assault must also be viewed skeptically. In the US in the 5-year period between January 1, 2000 and December 31, 2004, only 100 sexual assault cases were heard by state appellate courts. Of these cases, less than 5 percent involved actions against the person who perpetrated the sexual assault. The vast majority of cases sought money damages from third parties such as hotels,
Koss, 2006, 4 shopping malls, educational institutions, and insurance companies. Very few cases were decided favorably for the victim. In addition, the process imposed its toll. Problems from the victim perspective included that the average case required 5 to 6 years to litigate, prolonged and intrusive discovery was distressing, and self-blame was intensified by comparative fault doctrine. In states with comparative fault, juries determine the percentage by which any potential award will be reduced, ostensibly to account for victims’ responsibility in making themselves vulnerable to their own sexual assault. And, even when tort cases result in settlement, they contribute little to crime prevention. What percentage of the community followed the Kobe Bryant case beyond the criminal fiasco communicated through the public media? Although every intimate detail of the victim’s life is well-known, what do we know about the perpetrator’s actions with this woman or others in his past? Does the general public have information about accountability through the civil settlement that reaffirms anti-sexual violence norms and deters future perpetrators? The specialty of civil law also includes non-tort civil actions. These are indispensable to achieve goals such as overturning firing for performance decrements due to rape trauma, achieving educational accommodations when academic achievement has deteriorated, and preventing housing loss and other financial consequences of the foregoing. Unfortunately, the legal work force willing to accept these cases for no fee is miniscule and it is unreasonable to expect victims to be aware of or have the perseverance and resiliency to pursue these options in the immediate post-assault period.
Koss, 2006, 5 Expanding justice response Some legal scholars have suggested that the justice response to many crimes should be removed from the criminal justice system and handed over to service providers. Although it is true that sexual assault victims are vastly more satisfied with the help they receive from these agencies compared to the justice system, there is an array of arguments against this position. The strongest opposition has come from the anti-sexual violence movement itself. Criticisms are that justice outside the justice system undoes hard won legislative achievements, exacerbates existing public perception that these crimes aren’t taken seriously, and lacks back-up enforcement if the processes failed. Our collaboration advocates for a middle road that involves service providers in delivering a restorative program, but embeds the program within the justice system. A properly designed program might increase in the percentage of cases that are pursued rather than closed, impose more accountability for offenders, reinforce community anti-sexual violence norms, and encourage sex crime reporting due to victim perceptions that their choices have been enlarged. Because the devil is always in the details, it is necessary to get specific about what such an alternative justice program would look like. Restorative justice philosophy recognizes three groups that need to be involved in a balanced way in the resolution of crime: a) primary and secondary victims, b) offenders, and c) community representatives (tertiary victims). These groups are brought together by a wrongful act that caused harm and must be repaired. Restorative programs may occur at multiple points in the justice process including pre-charging and postconviction phases such as sentencing, in prison, pre-release, or post-release. There are many practices that claim space under the restorative justice umbrella. One of these is
Koss, 2006, 6 mediation, which is the practice most guilty of polarizing the gender-based violence community. Mediation identifies a conflict that two parties, assisted by a neutral party, will negotiate. What’s wrong here? Sexual assaults are crimes, they are not conflicts. Neither do they involve “parties.” There are victim(s) and offender(s). The crime is often gendered, meaning that the interaction will inevitably be influenced by power differentials. They translate into victims having less likelihood of speaking and being heard. Often, mediation has been court-ordered or otherwise coerced. This is not empowering, nor does it expand victim choice. Finally, requiring victims to “negotiate” on their own behalf negates some of the central functions of a justice system, which are to enforce social codes and hold violators accountable. Mediation does not establish an adequate conceptual framework nor has it developed appropriate procedures for gendered crimes. Many people believe that community conferencing is the most comprehensive restorative justice model. Conferencing typically occurs instead of a conventional trial. It involves victims directly speaking about the impact they experienced to the offender and creating the set of activities and actions that the offender will undertake to demonstrate acceptance of responsibility, genuine remorse and resolve root causes of offending. However, unique features of sexual violence argue against taking a conferencing model off the shelf and implementing it. First, sexual victimization involves intense shame, stigma, and emotionality. Scientific literature has established that even after taking into account personal history and social characteristics that could explain symptom severity, sexual assault still provokes more serious psychological distress than other crimes. Second, sexual assault victims fear for their personal safety more than other crime
Koss, 2006, 7 victims. Fear of rape is the most powerful predictor of women’s general fear of crime and once victimized, fear of the offender and of re-offence is aggravated. Third, sexual violence is a severe violation of personal trust. It is not appropriate to expect that a rapist who apologizes (whether required or voluntary), compared to a burglar, will or should be believed or that forgiveness could or should occur. Fourth, without monitoring plan fulfillment, victims may be placed at safety risk and experience repetition of trust violation. Finally, rape supportive myths and attitudes in the general community are welldocumented. Without careful planning and preparation, community validation of sexual assault cannot be assumed. Demonstration Project: RESTORE Five years ago a collaboration was formed in Pima County, AZ consisting of the three local police and sheriffs’ offices, the county attorney’s offices of Tucson and of Pima County, two victim services centers, and The University of Arizona College of Public Health. Our collaboration collected and reviewed the material that has been presented in this article and resolved to develop an alternative option for sex crimes. The developmental phase was funded by the Tucson Police Department and implementation and evaluation is currently funded by the National Center for Injury Prevention and Control, an entity within the US Centers for Disease Control and Prevention. The program we created was named Responsibility and Equity for Sexual Transgressions Offering a Restorative Experience [RESTORE]. Cases are referred to the program after a guilty plea is entered for misdemeanor sex offenses, and program participation, which the victim and offender have already agreed to, is court-ordered. Many programs such as drug courts require guilty pleas for felonies as well. However, defense attorneys say they
Koss, 2006, 8 would have to advise against participation if a plea that would convert to conviction for a sex crime was the outcome of program termination. Sex crime conviction is a serious impediment to employability. It is not unusual for the crimes RESTORE addresses to be settled by plea agreement to nonsexual offenses. The following is a brief overview of the program—for detail, go to http://www.restoreprogram.publichealth.arizona.edu. Prosecutors set eligibility criteria to reduce safety concerns. Potential referrals exclude persons under age 18, repeat offenders, sexual assaults that are part of an ongoing intimate partner violence pattern, and violence levels beyond that required to compel unwanted sex acts. Typical referrals have included acquaintance rapes, often where both parties were drinking, exposure and public masturbation. The process has four stages. The first is referral. Referral is by prosecutors. Participation is voluntary, legal counsel is provided for victims at no cost, and informed consent is obtained in writing. Only if victims consent is the program offered to offenders. Our participation rates to date have been 40 percent of misdemeanor victims and 60 percent of felony victims. Most of the reasons for declining are personal, but the major ones are that the victim prefers criminal or civil tort actions. The victim participation statistics are lower than some programs internationally but on par with many. We believe that rather than being negative, the participation rates reflect that victims are truly being given a choice and the legal advice to select the option that is best suited to their individual justice needs. Participation by offenders has been 83 percent for misdemeanors and 88 percent for felonies showing that few victims have their justice preference blocked by offender recalcitrance.
Koss, 2006, 9 Some victims of sex crimes have told us they do not want a face-to-face conference. In response, we introduced an additional option that allows victims to determine their degree of involvement ranging from simply giving permission to proceed with the offender through full participation except being in the same room with the offender. Here the victim consents to have the program work with the offender and may or may not prepare an impact statement, have input into the redress plan, or elect to receive a statement of reflection written by the offender after completing the program. Victims who do not participate in the conference but are represented by someone of their choosing, or by community members matched as closely as possible on age, ethnicity, and gender. This option has been selected by 80 percent of misdemeanor victims and 20 percent of felony victims to date. The second stage of RESTORE is preparation, which is typically much longer than in other conferencing models in recognition of the complex nature of sexual victimization and the commitment to avoid re-abuse at all costs. The third stage is the conference. It is professionally facilitated by a trained human service provider, held in a police station, and conducted according to a detailed protocol to maximize safety of participants prior to, during, and after the conference. The typical agenda begins with an offender statement describing the wrongful act. Then victim impact statements are made by everyone who wishes to speak. Finally, the preliminary redress plan developed by the victim with program consultation is presented and agreed upon by the offender. This plan consists of program demands (psychosexual forensic examination, psychotherapy, no contact, community service, weekly supervision by program staff, quarterly supervision by the community board) and victim requirements. The most typical victim requirements
Koss, 2006, 10 are restitution, shaping of the community service, and input into counseling plan such as insisting on alcohol/drug evaluation and treatment if indicated. To date, 100 percent of conferences have successfully concluded and re-abuse has been prevented or nipped in the bud by facilitators. RESTORE allows observers with prior notification and consent of victims, offenders, family and friends. We have had prosecutors, police officers, correctional officers, and general community members. Most conferences terminate with both the victims group and the observers staying up to an hour to discuss what they have experienced and felt. Those observers who work in the justice system uniformly say they have never observed anything similar in terms of the powerful feedback that was given the offender and victims’ positive feelings about having achieved moral justice and validation. One prosecutor commented that she had never previously seen a sex crime victim able to laugh after a justice proceeding. Stage four is monitoring and re-integration. Victims feel shame and may be ostracized or self-isolate. The program aims to generate support for victims from their family and friends, which partially flows from the very fact that the justice system has taken the crime seriously. RESTORE must also respond to the community’s insistence on real accountability from any alternative that diverges from conventional justice. Extensive program requirements, a monitoring process, and the criminal justice system as a back-up when offenders are not compliant are critical to meeting concerns about soft justice and safety. Our belief is that re-offending is reduced by intervening strongly with first offenders, providing meaningful consequences, ensuring that they are completed, and mobilizing a broader circle of community support/control agents.
Koss, 2006, 11 Most of our cases are still in process. However, we have had 2 terminations for non-compliance (both felonies) after 40 to 60% of the requirements were completed. In one, prosecutors declined to take any further action and in the second, although the case was re-investigated, it is in the process of being declined for charging. Although this outcome saddens us, it is a clear demonstration that RESTORE is adding a justice option for victims and not diverting cases that would have otherwise been plead or tried. We have had one re-arrest of a program completer. It was an allegation of exposure to a step son that occurred in the context of a custody battle. In this case, the original victim was contacted by law enforcement, indicating that our prosecutors have worked out coding for RESTORE participation in justice databases so that future law enforcement background checks are not hindered. In summary, more than thirty-five years of law reform, training, and community collaboration have been accomplished by anti-sexual violence advocates, yet the evidence suggests that sex crime victims today are still as shut out of the justice system as before. Conventional justice presents a menu of responses to sex crime victims, but when they try to order, they learn that many items are not available and they are frequently told they must leave the restaurant without any food at all. This article described a demonstration project for community conferencing as a response to selected sex crimes. Many procedural changes from standard conferencing models were highlighted to minimize the overt problems that advocates, indigenous people, and policy makers have identified in previous undertakings. Yet, all has not been rosy. RESTORE has faced terrible obstacles including system lethargy and inertia, frequent staff rotation, turnover, political scandals, and poor morale at justice agencies, continuing traumatizing
Koss, 2006, 12 interactions of justice personnel with victims, and constant concerns about program sustainability. Grant decisions have reflected overt reviewer resistance to the program concept. Or, requests for proposals have carried an outright prohibition of submission if a program works with both victims and offenders, such as is true with Violence Against Women Act initiatives. Whether RESTORE will be positively perceived by victims, able to hold the justice system itself to higher accountability in sex crimes, and reduce re-offending are research questions that we are in a position to evaluate. Nevertheless, eventually, RESTORE may have to close its doors. Hopefully, this paper has made a compelling case that sex crime victims will be the ultimate losers. Readers can help by responding positively to the author’s plea for renewed conversation about the anti-sexual violence policy agenda. Any movement can benefit from creating energizing new visions on behalf of victims that expand the ways in which we fight for change. We all know only too well that these sorts of system changes do not happen without hard work by many people to create the prerequisite political and collaborative climate, to advocate for funding to nurture new programs, and to achieve attitudinal and behavioral changes in current justice practices. Thankfully, the anti-sexual violence movement has never been deterred by challenge.
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