What do you do when systems intended to provide justice actually harm you?
For sexual assault survivors, this question is inescapable.
Receiving justice through our criminal justice system forces survivors to relive their trauma with rape kit exams and to repeat the story of the attack to investigators.
This type of system was not created to support survivors’ emotional needs, but rather to punish the perpetrator. And cultural attitudes about sex make it difficult for survivors to be believed in the first place.
There are ways to improve the system, however.
Centering survivors’ experiences
Increasing advocate support for survivors would be a first step in improving the system, according to Cynthia Schnedar, a former deputy chief of the Sex Offense and Domestic Violence Section for the U.S. Attorney’s Office in the District of Columbia.
“It takes a lot of hand-holding to take someone through the system,” Schnedar said. “This is a public-facing process for a private issue.” Survivors need advocates throughout the process—from someone to be there with them during the rape kit exam to pretrial questioning and a public trial. Schnedar also noted that judges, detectives, and other professionals who work with survivors must be trained extensively in trauma-informed responsiveness.
Susan, whose name is a pseudonym to protect her privacy, was able to call 911 and fight off her attacker before he could sexually assault her. She said that while her case was easier to prosecute than most—since the police arrived during the incident—there were still many difficult parts of the process. She had to attend numerous hearings that began at 9 a.m. where all violent crimes were heard on the same day. She heard horrible stories of violent crimes, which was difficult for her emotionally. Susan also said she didn’t receive any mental health support referrals for herself or her family. Mental health support would have been helpful to prepare her psychologically and emotionally. In addition, mental health support should be made available to the family members of survivors. There is an entire ecosystem of people around survivors who are affected and need support. Susan’s husband, for example, still has nightmares.
Adding to her suffering, all of Susan’s teeth came loose as a result of biting her attacker when he was trying to strangle her. When she filed for victim’s compensation, she was told she had short teeth roots so it was considered a preexisting condition. She had to pay for implants herself, costing over $100,000.
Susan believes that prevention is key and has donated to anti-violence programs.
“I can’t undo what happened—I can only work toward preventing him from doing this again,” she said. It was important to her for the attacker to take full responsibility, but instead, he took an Alford plea—a guilty plea in which a defendant claims innocence of the crime but admits that the prosecution has enough evidence to prove guilt beyond a reasonable doubt.
But many survivors never get to see their case in court. What is the path to justice for these survivors? Some choose not to rely on the courts and instead create pathways to justice that work for them; they are creating systems that are survivor-centric rather than ones that focus solely on punishment. Other survivors look toward restorative justice practices as a way to heal. Others use social media to warn of the dangerous perpetrators in their communities and to experience the support of other survivors. As with the criminal justice system, each of these alternatives has its own risks, but they also give the survivor more control over what happens.
Using restorative justice in sexual assault cases
While restorative justice is not a new concept, its use in sexual assault cases is not common, primarily because few organizations provide it. It is a complicated process that requires coordination between the organization providing the service and the district attorney’s office.
When a survivor enters the restorative justice process, the first thing they’re asked is, “What do you need to heal from this experience?” The answer for each survivor is personal, and the process is crafted around that answer. The survivor must be the one to initiate a restorative justice process, and the perpetrator must be willing to participate. This is most likely to happen in cases where the individuals knew one another before the assault. For many survivors, simply having the person publicly admit that what they did was wrong is enough.
Restorative justice practices could flourish on university campuses. Most cases of sexual assault on campuses are difficult to prosecute in court, and the people involved often know one another. The new Title IX rules for addressing sexual assaults on campus allow colleges to develop alternative processes for adjudicating cases, although they are voluntary.
Some schools, like the University of Michigan, already have fully developed programs. As the Biden administration’s Department of Education looks at the Title IX rules, it must ensure that any process that goes outside of a full investigation keeps the survivor’s needs in mind and is trauma-informed. Restorative justice is such a process.
Naming your perpetrator online
The #MeToo movement began the trend of naming perpetrators online, but it is still a risky thing for a survivor to do.
“There are a lot of different things that come with that level of vulnerability, even if you post anonymously,” said Rachel Valentine, executive director of the Orange County Rape Crisis Center in Chapel Hill, North Carolina. If one of the center’s clients says they would like to post a name publicly, their counselors go through an emotional safety checklist with them that covers the myth of anonymity and the possibility of legal action.
But Valentine also noted some positive potential outcomes, including connecting the dots of a whisper network. The North Carolina Protection Alliance is an online group that hosts Instagram posts from survivors naming their perpetrators; several men’s names have come up repeatedly. Survivors who see these posts send one another comments of support and solidarity. “Naming names can be a part of healing,” Valentine said. And when you have no other alternative, sharing community support can be a powerful tool.
Survivors deserve justice, not retraumatization. Until our criminal justice system can find a way to actually prosecute the majority of cases of sexual assault, survivors will continue to seek justice in ways that are healing for themselves. What an incredibly heavy burden to place on survivors. We can do better.