January 2018

Could a victim-centred approach be a better fit in cases of sexual harassment and assault?

TRUMP, WEINSTEIN, MOORE, FRANKEN, THE RCMP…Every hour, it seems, more are added to a dizzying list. But remember the 2014 Dalhousie Dental School case, where “gentlemen” students waxed horrific on Facebook about their over-the-top, sexually violent predilections? The men were initially suspended. Then some of the female students referenced in those ghastly posts said they preferred a restorative justice process—an approach that involves facilitated dialogues and co-created, positive-action agreements—rather than university sanctions or criminal indictments. The media was outraged. Talking heads rolled. How dare these women demand some namby-pamby, non-punitive process, when the overwhelming public consensus was that the offenders must be expelled?

Oh, the irony. Women finally come forward to break their silence around the near-ubiquitous sexualized aggression woven into our workplaces, only to be silenced again in a “justice” where “authorities” dole out punishments. Victims’ needs and input are not just ignored, but derided: “Ladies, these men have offended you. Now step aside, and let Law and Order restore your honour and make you safe. Your offending male classmates will not get a wink and a nudge; they will be destroyed for their transgressions. This is how we will make things better for you—it’s fear of punishment that prevents bad behaviour.”

Except it doesn’t actually work that way. Even the death penalty does nothing to deter violent crime. A Public Safety Canada study concluded that “compared to community sanctions, imprisonment was associated with an increase in recidivism…longer sentences were associated with higher recidivism rates.”

So why are we in such a rush to punish—to lock people away, fire them from their jobs, and put them on registries—especially in cases where sexualized aggression is involved? Shouldn’t we listen to victims, and support what they think should happen next?

I SPEAK WITH A RESTORATIVE DIALOGUE FACILITATOR in Victoria who has worked on sexual assault cases (and for confidentiality reasons, declines to be identified). She tells me about a man who had committed rape. His lack of empathy was noticeable, but so was the fact that he genuinely didn’t understand sexual assault. The restorative justice process transformed his attitudes: “He was just floored by what women have gone through…how this plays into the bigger social fabric. He had never learned any of that. [He wondered] ‘Why don’t they teach this to us in schools? Why didn’t anyone teach us about consent? This is probably the most important thing I will learn in my life, and I didn’t know it.’” The facilitator tells me, “He made drastic changes in his life…It was really impressive to see him transform—in his thinking, in his behaviour, in his demeanour…the person who walked [in] a year later was not the same person. It was phenomenal.” In certain cases, the facilitator notes, “whatever things [offenders] have gone through in their own lives, they have closed themselves off. It is absolutely possible to help those people open up again and start feeling and start empathizing, and I’ve seen that happen.”

At Restorative Justice Victoria, I ask Complex Case Manager Jessica Rourke if she believes restorative approaches can be successfully applied to local sexual harassment or violence cases. (Disclosure: I am a volunteer facilitator at Restorative Justice Victoria, though like other volunteers I am not insured to handle such cases there). She says “Yes,” and that from her perspective, “Most sexual assault victims want two things: for the offender to know how extensive the negative impact of their behaviour was, and to walk out of there feeling confident that he is not going to do this again, that he is not going to [harm] someone else.” But, she asks, “how are you going to know that? What do you need to feel [confident about] that—what does that look like for you?” Restorative dialogues, when offered, she says, answer those needs and questions, and are what many victims say will bring them a sense of safety, healing, respect and hope.

So why do we reflexively insist on punishing offenders, without victim input? If it’s agreed that the long-term solution to sexual aggression is for men to become more empathetic and self-aware, are we serving that goal by limiting victims’ recourse to only the punitive courts or the shaming media? To develop empathy, offending men must hear from the women who have been affected by their actions, and understand the devastating impact they’ve had. Rourke has observed that the criminal justice system isn’t optimal for this: “There’s no room for ‘could you learn from this and change? Could you become a better person? Could you repair some of the harm you have caused?’” The victim, too, is sidelined. “The State is now the victim, it’s the State vs the Offender—your experience is now taken away from you…you’re a spectator.”

The offending Dalhousie dental students expressed gratitude for their experience in the restorative justice dialogue with their female classmates. They wrote, “We learned that saying sorry is too easy. Being sorry, we have come to see, is much harder.” They realized that it was not only their female classmates, but future patients and the larger community who were traumatized, and added, “We deeply regret if this has made even one person more reluctant or afraid to access the oral health care they need and deserve.”

Though university sanction guidelines called for expulsion of the men, the women in the Dalhousie dental class who participated in the restorative justice process were always adamant in their desire to graduate alongside their male classmates. “We are a part of a generation in which inappropriate sexualization is more common and widespread than ever before and we have become used to this,” they wrote. “More than [simply accepting the male students’ apology], though, we have seen the men learn why they are sorry, and what that requires of them.”

 
THE TSUNAMI OF REVELATIONS IN THE MEDIA has helped illuminate both the nature and extent of sexual harassment. In Canada, we learn, $100 million is being set aside for a possible 20,000 harassment claims within the RCMP. Over 30 percent of Canadians surveyed in a recent federal government report say they have experienced sexual harassment at work. Of those, 94 percent are women. An Insights West poll, released December 6, found that 50 percent of Canadian working women experienced some amount of sexual harassment in the workplace—though more than 40 percent of victims felt they should “handle it on their own” rather than report the behaviour, fearing for their jobs and seeing no palatable choice for meaningful resolution within the current landscape of options.

In a December 5th New York Times article by Nellie Bowles, businesswomen were asked about the widespread revelations of power abuses, and the sometimes swift and draconian consequences meted out to the offenders—without due process or dialogue with their victims. Most agreed that “a reckoning for the sexual misdeeds of men in the workplace was a long time coming. But ask the question ‘What do we do about it?’ and the answer has become as wide ranging, nuanced and intensely personal as the offenses themselves…Most of all, many women are wrestling with how this reckoning will work in practice: Who is the judge, who is the jury and what evidence is admissible.”

Gillian Lindquist, executive director of Restorative Justice Victoria, agrees there isn’t a one-size-fits-all, punitive approach that can be applied meaningfully in sexual aggression and harassment cases, especially if significant time has passed since the incident. She feels more could be done to bring nuance into deciding consequences such as firings or being placed on a registry. “If you committed this assault 15 years ago, it has a huge impact, but have you changed? There hasn’t been any discussion of this. It’s just, ‘Boom, you’re gone.’ Maybe some of the women do want that, but maybe some of them don’t. I haven’t heard of a single case where someone has asked them.”

Most of us would agree that victims’ needs and desires should be integral in justice outcomes. Research tells us that perpetrators of sexual aggression are more likely to change course when they understand the direct impact they’ve had, and are given constructive actions to take, rather than simply being shamed or punished. If the criminal justice system isn’t currently set up to serve either of these goals effectively, and the government isn’t providing alternatives, the community needs to step up and provide a container in which these dialogues can occur.

Successful restorative dialogues in sexual aggression cases like the one at Dalhousie Dental School require funding for facilitators with extensive professional training. Neither the criminal justice system nor any of the (largely volunteer) restorative justice programs here on the Island offer consistent victim access to such resources. Until funding is provided for a new, parallel system, which would provide supported dialogues between offenders and victims, many offenders will be subject to disproportionately harsh, unproductive punishments, and victims will continue to endure the demoralizing, demeaning process of proving—to the media or the courts, “beyond a reasonable doubt”—they have been harmed. “Wouldn’t it be amazing,” posits Rourke, “to have survivors of sexual assault creating the system?”

Writer Mollie Kaye is a volunteer facilitator at Restorative Justice Victoria, and believes that empathy-based, victim-centred dialogues are far better than punishment as a strategy to restore trust and heal communities.