The criminal justice system has historically failed survivors of sexual violence. And it’s easy to make that conclusion when reading the statistics: Three out of four sexual assaults are not reported to police, often for survivors’ fear of being victim-blamed. Out of the cases that are reported to police, 13% get referred to prosecutors. And only 7% of those cases lead to a felony conviction.
But what if there was a better approach to getting justice for victims of sexual assault?
Dr. Mary Koss, a Regents’ Professor at University of Arizona’s Mel and Enid Zuckerman College of Public Health, illustrates multiple justice alternatives in a new report released Friday, published by Data For Progress and the Justice Collaborative Institute. Currently, there are a very limited number of options for victims seeking justice, but by implementing restorative justice ― an alternative method to addressing harm by relying on community members instead of the criminal system ― survivors could have a say in what type of justice they’re seeking and how they receive it.
“The criminal justice system is a pipeline, and it has leaks all along the way,” Koss told HuffPost, adding that only “a drop of consequence comes out.”
“The criminal justice system is a pipeline, and it has leaks all along the way.”
Using restorative justice practices could fix that leaky pipeline, Koss said. Out of a survey of over 1,000 U.S. voters, 69% said they would support making mental health and trauma-related services available to survivors who choose not to report to police. Nearly 60% of all respondents supported reallocating funds from law enforcement to support financing those victim services.
Last month, HuffPost spoke to more than a dozen survivors of sexual assault about the debate over defunding police. All of them said police usually ended up re-traumatizing them instead of helping them find justice. Many of the survivors said they’d like to see more restorative justice alternatives implemented in the current criminal system, telling HuffPost that many social services that could receive a reallocation of funding from downsized police budgets are the very types of services victims need when they report: mental health, addiction services and other trauma-informed social services.
HuffPost spoke with Koss about alternative justice options beyond what our criminal system currently offers.
Can you walk me through how the criminal justice system often fails sexual assault survivors?
It starts with when victims make their first decision, which is, are they going to report to the police or not? And that often depends on how they believe they’re going to be treated. Police officers are people and they make their decisions based on the same grounds that many other people do: their response to sexual assault victims can be steeped in myths and stereotypes. They can be trained to be more sensitive, but their job is to get at the evidence. And it’s fairly hard to do that ― no matter how good your training is ― without being somewhat harsh.
So if you look at the cases that police decide ― whether they just don’t have the resources to investigate or they, frankly, don’t believe the victim ― that pile will have too many minorities, too many people with substance abuse issues and too many people with mental illness problems.
But it has to be recognized that police aren’t the only part of the criminal justice system. They’re just the beginning of it.
Any case that survives police investigation goes to prosecutors, where they often apply those same perspectives or biases again. In addition, they think about: “Can we win this case in a courtroom?” Because if they can’t, they won’t waste their resources on it.
When you put this all together, what we’ve got is an adversarial justice system, where the purpose of the system is to uncover the evidence, weigh the evidence, assign culpability and set punishment. The criminal justice system is woefully inadequate to address the crime of sexual assault.
There’s been a lot of discussion around the movement to defund the police. Although sexual assault survivors have a spectrum of experiences with law enforcement, how would you approach the conversation around defunding the police in relation to alternative justice options for victims?
If I had to put it in my words, it would be: Reallocate VAWA [Violence Against Women Act] money. Yes, I don’t think police should be working as social workers. But I don’t think that sexual assault survivors are asking police to work as social workers.
Some of the VAWA money does go to police and it trickles down to the local policing level. I believe that money should be up for discussion about whether it’s being used in the best way. I got some of that money once and I had to go to a hearing and listen to who else was competing for it. One of the other proposals was to buy one of those great big riot vans and get it all tripped out. Luckily, there was the right person in the right place who said maybe we don’t need that tank and we could actually help some people who are working towards restorative justice.
We have to take a look at the VAWA money. Where is it going? I don’t believe that the money for restorative justice should come from taking money solely away from police departments. The role police play in sexual assault, although it’s a critical gatekeeper function, is again just the first part of the system.
How would a restorative justice option help fix our “adversarial” justice system?
Restorative justice is also about holding people accountable. In the U.S., since we have such a high incarceration rate compared to the rest of the world, we think the only way to take crime seriously is to put people in prison. The process believes in holding people accountable in meaningful ways that are community based.
The only thing I would like to emphasize is that not all wrongdoers are willing to take even the slightest bit of responsibility for what they did. And those people unfortunately can’t be dealt with in restorative justice, because restorative justice is for people who seek a process that helps.
Would you say restorative justice is a more victim-centered approach?
I’m having this internal struggle, because restorative justice doesn’t advertise itself as being victim-centered. It visualizes itself more as a triangle. The current adversarial justice system is seen as having basically one customer and that’s the defendant. And it’s the justice system’s job to put that person, if possible, in prison. The victim is not seen as a customer of the criminal justice system. So the victim doesn’t get good service necessarily because you’re not a customer. You’re just there as an assistant to do their job, observing their customer ― the defendant.
“The current adversarial justice system is seen as having basically one customer and that’s the defendant. And it’s the justice system’s job to put that person, if possible, in prison. The victim is not seen as a customer of the criminal justice system ... You’re just there as an assistant to do their job, observing their customer ― the defendant.”
Restorative justice was created to say that justice shouldn’t just focus on the wrongdoer, justice has to focus on the wrong as well as on the wrongdoer. Restorative justice is often illustrated as a triangle where it’s got victim, wrongdoer and community because you have to balance the needs of all three.
It’s certainly better for victims: it gives them more choice, more control over the process, more flexibility to shape the process, and it provides them with a validating environment. There are many, many ways in which it is set up to be a better experience for victims. But it’s not set up that way at the expense of denying due process to the wrongdoer or at the expense of putting the community at risk from having unsafe people running around.
I recently had a conversation with a sexual assault survivor for an article about defunding the police. She said something that’s really stuck with me: She initially chose not to report her abuser because she believed he would be sexually assaulted in prison, essentially reinforcing and perpetuating the very violence he perpetrated himself.
Altruism of victims is important to note here. Oftentimes if people who are looking to hold their wrongdoer accountable were given a list of possible consequences, most would not select “I want this person to go to prison.” But unfortunately, we have a system set up that has a very limited menu.
We don’t really have an alternative that’s available to sexual assault victims. Often this forces victims to take justice into their own hands by writing guys’ names on bathroom walls and keeping social media lists of fraternities that have rapists in them. Those are some of the ways people have struggled to find alternative systems of justice.
What do you hope people take away from your report?
We need to make sure we’ve connected or reconnected with the voices of the victims we are supposedly serving. We have to be prepared for the fact that justice is a luxury. If you’ve got money problems, food problems, housing problems, day care problems, transportation problems, employment problems, you can’t afford the luxury of justice. It’s not appealing to you. So when we are creating alternative justice options we have to think in that broader perspective.
This interview has been condensed and lightly edited for clarity.
Need help? Visit RAINN’s National Sexual Assault Online Hotline or the National Sexual Violence Resource Center’s website.