Alternative approaches to rehabilitation and healing still face resistance, even though the criminal legal system’s reliance on punishment has done little to move the needle on addressing sexual violence.
One autumn night in 2017, Matt and Katelyn met at Ale Mary’s, a bar in Baltimore, where they both lived. The two had started seeing each other since meeting at a summer barbecue, but she broke it off after what Matt did days earlier. While Katelyn and Matt were having sex on Oct. 7, she told him multiple times to stop and tried to push him off, but he persisted. Matt sexually assaulted Katelyn. Yet when she confronted him about it at the bar, Matt didn’t try to deflect or argue that it was a misunderstanding.
“He physically shrank in his seat and looked really ashamed,” Katelyn recalled. (Katelyn and Matt are going by pseudonyms in this story to protect their privacy.) Matt said he could tell it was hard for Katelyn to confront him about what he did. “What do you do? What do you even say? There’s no way to make up when you violate someone like that,” Matt said.
Katelyn knew she didn’t want to file a police report. She didn’t trust the Baltimore Police Department because of how its officers had treated sexual assault and rape victims in the past, she said. Plus she didn’t think putting Matt in jail would help things. What Katelyn wanted, like so many survivors, was for Matt to know what he did was wrong and never do it to anyone again. So they agreed to seek out a restorative justice process in which they would discuss what happened in a mediated setting to help Katelyn heal.
“I wanted to know why it happened, and I wanted to not be hurt by it,” Katelyn said. “I wanted no one to be hurt as a result of what happened, including me and including him.”
But after two years of searching, Katelyn and Matt have been unable to start a restorative justice process. One nonprofit doing this work in Baltimore didn’t have the capacity, Katelyn said. Another group that declined to take their case told The Appeal that its leaders deliberated for several months about whether it could facilitate restorative justice for sexual assault—even hiring a consultant and hosting a forum with 25 people to discuss it—but ultimately concluded they didn’t have the expertise on staff to address sexual assault cases. Exhausting the options in Baltimore, Katelyn also contacted a restorative justice center in Virginia, which she said declined to work with her. A handful of other organizations never called her back, Katelyn said.
The criminal legal system has produced ample evidence of how poorly it deals with sexual assault: Tens of thousands of rape kits have gone untested, fewer than 1 percent of instances of rape result in a felony conviction, and states still have inconsistent definitions of what counts as rape, often excluding LGBT people from legally being considered victims. Years of activism have revealed similar failures by churches, colleges, corporations, and the military.
Some activists and advocates who work with survivors have become increasingly open to using restorative justice in place of punitive approaches that are failing to address sexual violence. But finding someone to facilitate a restorative justice process for these cases is remarkably difficult. Facilitators note that there are few of them doing this work in the U.S., and the ones that are have limited capacity. Survivors who want to engage in restorative justice are often forced into a binary option: seek to punish the perpetrator by locking them up or do essentially nothing.
Katelyn, who was left with the latter choice, expressed her frustration: “I blame stigma and the criminal justice system and the media all these things that contribute to the idea that rapists deserve to rot in jail for the rest of their lives,” she said.
Restorative justice has become more popular in recent years as the criminal justice reform movement has gained steam, though its roots can be traced to indigenous communities around the globe. Some Native communities, for example, historically focused more on restoring harmony after a violation rather than punishment. First Nations tribes in Canada and Alaska often used “circles” to resolve conflicts that considered how the community could be healed after an offense. Howard Zehr, a criminologist credited with mainstreaming restorative justice in the 1990s, said proponents of restorative justice owe a debt to Native traditions and justice systems.
But there has been tremendous resistance to expanding restorative justice in the U.S., said Michael Gilbert, executive director of the National Association of Community and Restorative Justice. He laid out several reasons: The process requires essentially an admission of guilt at the outset, which defense attorneys don’t like; prosecutors worry the offender could retraumatize the victim; judges don’t want to sign off on something that they consider unproven; and victims’ rights groups mistakenly view restorative justice as offender-centered, even though the process actually focuses on what the victim needs.
When Maegan Willan, a licensed psychotherapist in California, expressed an interest several years ago in facilitating restorative sessions between perpetrators and survivors, she said her supervisor at the time became angry. “She got really upset, almost like shaking,” Willan recalled. “She said, ‘You should never ever put a rape survivor in the same room with a rapist’—I was like, what if that’s what she wants for her healing?”
And Sage Carson, who runs the youth civil rights group Know Your IX, said the survivors advocacy community is recognizing that prisons can result in further harm and might not always be the best way to hold people accountable. But they still encounter scenarios like one that Carson experienced when she worked with domestic violence survivors while in college in Delaware.
“I remember sitting with our client and she said she was raped by her husband,” Carson recalled, “and both officers looked at us and said, ‘Well that’s not a thing.’ Many of those systems are still at the point where they’re not taking the act of violence seriously.”
All of that headwind makes it difficult to find funding for restorative justice, Gilbert said, and “there are not going to be a whole lot of people who are going to be doing it for free.” That lack of funding, he noted, has the effect of marginalizing the process and limiting access for most people.
Indeed, the one person Katelyn found who was able to facilitate a process was Alissa Ackerman, a California criminal justice professor who researches and practices restorative justice. But Katelyn and Matt couldn’t afford the hourly rate for Ackerman, especially because a facilitator might spend months working on a case. One of Ackerman’s cases has been in progress for two years.
“I can’t afford to fly myself to do these things, and a lot of people coming to me don’t have a lot of money,” Ackerman said. “I believe in restorative justice, but finding the money to support it is really hard.”
Mary Koss, a University of Arizona professor who was the first to document the high prevalence of campus rape over 30 years ago, has long been a proponent of restorative justice in sexual assault cases. She led research of a restorative justice pilot program for a handful of such cases from 2003 to 2007. She found the vast majority of people who participated would recommend it to others, and 15 of the 18 victims felt supported and listened to in the process.
Koss hoped the #MeToo movement and the wave of donations to Time’s Up, a nonprofit born in 2018 to combat workplace sexual harassment, could be the catalyst to get more support behind restorative justice for sexual assault. (That year, actors affiliated with the group made calls during the Golden Globes for restorative justice in sexual assault cases.) Koss contacted Time’s Up last year to discuss her ideas, but couldn’t get anyone from the advocacy group to speak with her. Time’s Up told The Appeal that its staff responded to the professor, but the only record Koss had of any communication with the nonprofit was a generic response email.
The message, Koss said, “read like a recognition of a customer service request and, in the absence of follow-up, meant ‘kiss off.’”
The pilot program that Koss studied did not continue in the U.S., but it did help inspire a restorative justice program in New Zealand called Project Restore. The program is now funded by a mix of government and community groups, according to Fiona Landon, who helped start the organization in 2005. Landon, a facilitator with Project Restore, said the group takes cases that run the gamut—from “stealing knickers off washing lines” up to child abuse and rape—and work both in and outside the criminal justice system. Landon said Project Restore has not faced significant opposition from victims’ rights groups in New Zealand, which she believes is because many of the organization’s staff came from the survivor advocacy space.
“We’ve been able to talk their language, and they’ve been able to see the work and see that we do it in a way that’s all around survivor needs,” Landon said.
In a white paper published online last week, law professors Lara Bazelon and Bruce A. Green acknowledge that restorative justice is rarely used in sexual assault cases in the U.S. and that prosecutors may have good reason to pursue the adversary process—for example, in cases of violent, repeat offenders. But restorative justice, they argue, can provide victims power and input that they might not otherwise have in the criminal legal system. “True victims’ rights advocacy focuses on what victims themselves want rather than the embrace of tough-on-crime narratives that serve as little more than ill-kept or empty promises,” they wrote.
There are signs that more progressive and reform-minded officials may put more resources behind restorative justice programs. Chesa Boudin, who won San Francisco’s district attorney race in November, has promised to expand restorative justice, as has Suffolk County, Massachusetts, District Attorney Rachael Rollins. Representative Ilhan Omar, a Minnesota Democrat, asked in November for restorative justice for a man who threatened her life. Representative Ayanna Pressley, a Massachusetts Democrat, recently proposed a resolution that advocates funding for restorative justice programs. Each of them argues that the process can help stop cycles of violence and keep communities intact.
But some practitioners say they hope to see restorative justice conducted without involving the criminal legal system at all. Willan, now a restorative justice facilitator in Berkeley, California with the Ahimsa Collective, said she has only been able to facilitate dialogues for cases that have already been adjudicated through the courts. Each time Willan tried to set up a process for a situation that hadn’t been prosecuted, she said the offender has refused out of fear that it will lead to some sort of punishment.
“I long for the day when we can be doing this work not in prison,” Willan said.
Katelyn said she and Matt have frequently talked on their own about what happened and the consequences of it, but it’s not a replacement for a facilitated process. “I wanted a third party backing me up,” she explained.
Matt has spent the last two years reflecting on why he did what he did. In the moment, when Katelyn told him to stop, he thought it was because she wanted him to do something differently in bed. “I was thinking what am I doing wrong instead of maybe there isn’t a right or wrong; maybe you have to listen to someone.”
For a few weeks last year, Matt said he attended an abuse intervention program called the Gateway Project, which was held in group meetings. Most of the people in it were there because they had been arrested or charged with physically abusing their partners. Matt wasn’t an exact fit, but he could not find another program tailored to people like him: people who violated their partner’s consent.
“It kind of makes you feel incorrigible, like what you did is so bad, there’s nothing out there for you,” Matt said. “It’s like people feel like you can’t be better.”