A Restorative Justice Framework for Sexual Harm
Definition of Restorative Justice and its Core Concepts
Restorative Justice is a concept and framework that’s gained traction and popularity in recent years. Restorative justice is about repair, not about forgiveness or reconciliation. It is a potential alternative to the idea of punishment as deterrence, and to carceral (prison-based) justice system. The ideas of repair and non-punitive consequences have become more popular in the public consciousness since 2020, coinciding with increased American frustration with the system of policing.
Restorative justice has explored for misdemeanors involving minors in sheriffs and police departments across the country (US). Here, I’ll describe a framework for restorative justice that specifically addresses sexual harm - which includes sexual abuse, severe and persistent sexual harassment, egregious sexual assault, and penetrative rape. As restorative justice has become more popular, it’s too often shifted away from repair/restoration for survivor(s); I’ve included ways in which I shift back to the survivor.
Why would survivor(s) and perpetrator might chose restorative justice? The following are a few reasons.
For survivors:
To tell their story, including the harmful impact that the perpetrator’s action had on them. To feel heard and seen in a safe setting.
A chance to show the perpetrator (and community) that they’re a real person
To ask the perpetrator (and/or community/bystanders) that they couldn’t otherwise
To ask for repair and restoration directly of the perpetrator
To be involved in how the perpetrator that harmed them is held accountable.
The perpetrator does not receive anything for participating (eg, they aren’t paid for their time, nor should participation be used as a lure to allow the perpetrator back into the community if their participation was restricted, as it clouds incentives for true change). For perpetrators:
Taking accountability
To repair/amend some of the harm directly with the survivor(s)
Transformation so they do not continue to sexually harm
To tell their side of the story
So what is restorative justice? There are three core concepts built into it: accountability, restorative/repair, and deterrence.
The first step is accountability. The restorative justice facilitator(s) is selected and they must determine if the case is a good fit, then person accused of harm (the perpetrator henceforth) must necessarily admit to and take responsibility for the harm.
The next step and concept is restorative/repair. For this, the perpetrator must be willing to work through restorative and repair with the person(s) they directly harmed, and sometimes with the broader community (friends, family, communal group; sometimes called stakeholders) that the harmed occurred within.
Lastly, the process closes out with steps to determine whether or the perpetrator has or is capable of real change or they will continue to cause harm: that is, to stop sexually harming folks. The idea behind this is to deter the person from future harmed through coaching, therapy, and frameworks for changing behavior and thinking.
After a brief history of the use and development of restorative justice, I’ll get into the types of communities that restorative justice is appropriate for, and then methodologies as I detail my framework. My background: I studied traditional law and have a J.D., and have been a survivor advocate and a community accountability facilitator (including restorative justice) for over eight years (at the time of writing). Throughout my explanation of my framework, I’ll fill in a few stories of processes and survivors to bring the concepts to life.
You may have heard the term transformative justice; a simple way to look at transformative justice is that it’s restorative justice plus social justice. It addresses societal, systemic issues through the process. The framework I describe could be used for both, though I’ll use the term restorative justice throughout for ease.
A Brief History of Restorative Justice
The communities that traditionally relied on restorative and transformative justice include hunter-gather and agrarian communities that pre-dated or were not included in formal legal systems, and later, groups that either could not access formal legal systems or did not trust those systems. These include indigenous people from the Americas, Black, immigrant, and LGBTQI+ communities. Because the groups had strong social ties and trust networks, they were relied on one another and had a great need for communal-level repair to maintain and build trust after something deeply harmful happened within the group.
In more mainstream groups, interest in restorative justice began in the 1970s. Howard Zehr is an early theorist of restorative justice; and he’s mentioned in almost every explanation and writing of restorative justice I’ve come across. In the last twenty years, there has been more institutional support and development of restorative justice frameworks and models. This includes the National Restorative Justice Program provides training to Restorative Justice coaches; coaches usually work directly with the perpetrator so that they may take accountability and to work through reducing recidivism. sujatha baliga is another highly respected restorative justice speaker and practitioner; her knowledge of the law and her development of restorative justice diversion program has been educational and informative for many. Other popular practitioners include Mia Mingus, who, with Bay Area Transformative Justice Collective, coined the term “pod”. A pod is simply a group of people supporting the survivor and the perpetrator. In my framework, I’ll describe the limitations and harm that can be caused by solely relying on pods, and delve into how they can be supportive without placing expertise or facilitators.
Before Restorative Justice; Community Safety
This section is not applicable for sheriff’s departments, city-level district attorney’s offices and police departments, or state-level programs as they rely on the law.
If a community is formally organized (eg, , there are steps that should be taken to keep its member safe and informed. The two main steps are: having a formal code of conduct and a way that sexual harm (and other harms that go against the code of conduct) can be reported. Within this week, I’ll upload a template for a code of conduct to demonstrate what should be included. A definition of harm and unacceptable behaviors should be included, as well as basic information about a reporting system, and details of how reports are handled. An outline of the investigative process and support mechanisms for both the perpetrator and the survivor should be included. This will become more clear through the template.
Step One: Accountability
There are three types of organizations/communities that restorative justice would work for: communities (including immigrant and queer communities, political organizing groups, event, formal special interest group…the list goes on), sheriff/police departments and other governmental organizations, and non-profits that facilitate restorative justice processes. For a community, the process begins when a survivor brings a report of sexual harm to the community’s attention. For a sheriff’s or police department or governmental organization, the beginning of a process is formally laid out through the development of the program. For a nonprofit, it’s when a survivor/perpetrator is referred to them, or approaches them (depending on the organization).
For the non-profit and police/sheriff’s department, the finding or admission of guilt will be in place already.
For the community, the admission or finding would first be acquired through the mechanisms described in their code of conduct. For a less formal community, a small group of stakeholders (members of the community) would approach and speak to the accused to option a finding/admission, and then describe the next steps for restorative justice process. I’ve written some thoughts on how to approach accusations at a community level here.
Step Two: Repair & Restoration
When To Use Restorative Justice
The heart of the restorative justice process is the “repair and restoration” step. The factors for determining success for a process are:
Involvement of experts
The survivor(s) and perpetrator willingness to engage in process. They should not feel manipulated or forced
The parties emotionally stable enough to engage
Ensuring or providing adequate support (eg, therapists, support pods)
Is there an opportunity for transformation, healing and change.
I’ll include a link to a framework with specifics for determining if a “case” is a good fit for restorative justice within the next two weeks here (eg, an especially violent and/or cruel sexual assault isn’t a good fit). Once a case is judged as a good fit or not, there are different modalities/frameworks that can be employed for restorative justice; I’ve included them below.
Support
Within a community, both the survivor(s) and perpetrator should have separate support groups, or pods. This should be a group of at least three folks that have agreed to be supportive. If they do not friends or family who are willing, there are programs and circles that provide support (eg, University of California, Santa Cruz has these, Futures without Violences provides assistance with circles. For perpetrators, there are supportive programs such as through Kaiser Hospitals.
I’ve also set up links for resources for survivors. Here is to the resources page, which includes support for survivors and includes a link to self-care tips. This document provides guidance to the support pod.
I’ve included a link to guidance for perpetrators through the accountability and repair/restoration process that I’ve set up on my professional site. This includes setting up a support pod, and tips on managing emotions throughout the process.
There are two ways in which my concept of a support pod differs from the standard documents I’d come across. One: rather than rely only on close friends, family, or members of the community willing to be supportive, the support pod should include at least one expert. This could be a survivor advocate (for advocates), a therapist or coaches that works with survivors/perpetrators of sexual harm, and in general, people with extensive experience around sexual harm and a deep understanding of the dynamics of harm. Two: the guidance I’ve created provides some information on the dynamics of sexual harm, describes how to speak with a survivor or perpetrator, and details what a pod should and should not be responsible for.
Modalities
A restorative justice process is a series of facilitated conversations. The modality to use depends on who is involved (eg, survivor, perpetrator, or other stakeholders) and how they’d like to be involved. As I explain the modalities, which one is appropriate will become more clear. For example, if is it only a survivor and perpetrator and the survivor wants to be face-to-face with the perpetrator, then the victim-offender dialogue works. If there are many parties involved through a larger family or community, then a circle or a family circle would be more appropriate.
The simplest modality is a series of conversations can be through a mediator (or facilitator), with only the survivor(s) and perpetrator (victim-offender mediation, or victim-offender dialogue1 when it’s done face-to-face), or the survivor(s) and perpetrator with one or two support people per (“conflict resolution” or mediation). With these facilitated conversation models, the mediator/facilitator must be an unbiased expert. Conversely, one of the most successive processes I’ve heard of was instigated directly by a survivor. She contacted a lawyer in Canada that is an expert at restorative justice processes, and he facilitated. She’s now a strong advocate of restorative justice, speaking at conferences and raising awareness. The expert, unbiased facilitator and the survivor willingness to engage in the process determined success.
Another modality, developed from indigenous American practices, is a healing circle. A circle consists of: an expert facilitator, the survivor(s), the stakeholders (the people who aren’t the survivor but were impacted), and survivor and perpetrator support/pod. Some of the people included might be community members that the survivor feels harmed by in the aftermath of reporting the assault, eg., people who didn’t believe the survivor(s) or make remarks that felt like victim-blaming or slandering. Similar to this is the family circle (or family conference) (when sexual harm occurs within a family, and the community is the family). When I’ve facilitated processes, I go against convention by asking the survivor(s) to speak first, as the intent of restorative justice is restoration and repair. This offsets the power differentials inherent in sexual harm, and offset that the perpetrator usually has more power in society overall and under the circumstances.
Other modalities include: victim-impact panels (when a panel hears statements from victims impacted by the harm and determines the steps to repair/restoration from the perpetrator, community reparative board (when a community board/panel hears about the harmful impact on the survivor(s) from the perpetrator and determines the steps to repair/restoration from the perpetrator).
Repair and Restoration to the Survivor(s)
Sometimes, the survivor has specific asks for repair or restoration. These are realistic, real world ways through which the perpetrator can reduce harm. The survivor(s) might ask that the perpetrator leave an event/physical space if the survivor was there, somewhat resembling what a restraining order might do without the lengthy legal process of an order. Another common offer is one-time cash payment (this should be handled carefully so as to avoid potential blackmail or silencing). A few common ways to determine is the payment include: one or two months of rent/mortgage and/or a few months of therapy for the survivor. These depend on the perpetrator’s income (or other access to funds).
The asks from the survivor should be within reason. Years ago, I read about an informal community restorative justice process in which a survivor asked for the perpetrator to be physically beaten (!!). This is not at all reasonable and puts other community members at risk (of arrest or worse). Violence, illegal acts, impossible acts, blackmail (eg, demanding payment under duress or through threats), threatening the survivor to silence them (eg., ruining their career, removing them from the community) are not restorative justice.
When Restorative Justice Goes Wrong
Throughout this framework, I’ve highlighted the need for expertise. This is because it’s all too easy for a well-intentioned non-expert to (1) inadvertently cause harm, (2) it’s all too easy for the perpetrator’s calm or victim blaming (eg, DARVO - deny, attack, reverse victim-offender) to supersede and silence the emotionally affected survivor(s), and (3) a thorough understanding and experience on the how to facilitate rather than playing it by ear. Maybe this sound intuitive, but many community-level restorative justice are run by friends of the perpetrator or survivor that have read a few articles or had a conversation or two about restorative justice.
What’s gone wrong in the harmful restorative justice processes I’ve witnessed: the practitioners aren’t experts or trained, are perpetrator coaches that have extensively worked with perpetrators prior (which creates bias), are pushing forgiveness or reconciliation onto the survivor(s), susceptible to the wrongdoer convincing them that the survivor is at fault or the true aggressor (ill-informed about the dynamics of sexual harm, DARVO), the community’s harmful reactions to the survivor and their story is left out altogether, and the heavy focus of deterrence and transformation for the wrongdoer is at the exclusion of the survivor, with little to no care for survivor interests or restoration. Here’s an article showing the harm caused to survivors when a mediator isn’t biased and doesn’t have training around mediation or the dynamics of assault2.
Some restorative justice processes go awry when the survivor or wrongdoer interrupt it, and/or it devolves into social media call out and/or private gossip. Others don’t begin because the survivor and/or wrongdoer do not know that their community has a place to report, the survivor and wrongdoer do not trust each other, or they do not trust the community/practitioner of restorative justice to facilitate a process fairly and in a way that’s restorative instead of harmful.
My first experience with restorative justice was a process that I was put through: it was a circle with two support folks for me (the survivor) and two for the perpetrator. What went “wrong” was that the person heading/running the process had a close relationship with the perpetrator, the people appointed to support me weren’t my friends but were the perpetrator’s friends, and I was not given adequate time to literally or emotionally prepare (less than 36 hours notice) before the circle was to meet. Since then, I’ve spoken to five other survivors who have negative experiences with the same practitioner.
Step Three: Transformation/Deterrence
Part of the ideology behind restorative justice (and in traditional justice, through victim impact statements) is that humanizing the survivor(s) and allowing them to speak to the perpetrator are a way to facilitate change. If the perpetrator knows and understands the effect of their action, they’re more likely to slow down and not sexually harm in the future. Another thought is that if a perpetrator takes accountability and steps to repair, they’re less likely to repeat.
The numbers show restorative justice is highly successful for juveniles: one study found that recidivism dropped by nearly 80%, and using restorative justice (instead of disciplinary measures such as suspension) in Oakland School District saw recidivism drop by 43%3.
Restorative justice is very useful as a tool and framework for repair, restoration, and healing for the survivor(s) and community. It also offers a chance for the perpetrator to be rehabilitated, but that might be separate from the process, and success varies. I’ve included some guidance around direct intervention/rehabilitation. The California Department of Corrections believes that restorative justice and perpetrator interventions programs for adult perpetrators reduces the chances of recidivism by thirteen percent (13%)4. This does not account for perpetrators potentially becoming “better” at covering their harm. While restorative improves the chances that the perpetrator will not harm again and provides healing/restoration to the survivor(s), it’s not a guarantee that the . Two survivors (one of completed rape, the other of attempted rape) I helped had been assaulted by a perpetrator that had gone through a process, and was actively working with an accountability support buddy for over three years. Despite that, the accountability buddy did not take the new accusations seriously, and the perpetrator claimed that the survivors were mentally unstable and had lied about the assaults.
Beyond the “repair/restoration step”, there are a few possibilities for deterrence for a perpetrator. There are institutional programs, such as through Kaiser Hospital in California (two perpetrators that assaulted survivors I’ve worked with went through this; one agreed to a restorative justice process). Many coaches and therapists work directly with perpetrators; many will begin this work before engaging in a repair/restorative process, as a way to prepare for that process. Some perpetrators ask their support pods for this type of work; that leaves the work to be self-guided, with the pod simply asking the perpetrator to do whatever work they/the perpetrator feels appropriate, without input from experts.
Restorative Justice
This is an explanation of the basics of restorative justice. Each case, survivor, perpetrator, and community will have their unique needs. A few things that are important to keep in mind are that: restorative justice is about accountability, restoration/repair, and deterrence, not forgiveness or reconciliation, to provide additional emotional around the process to survivor(s) and perpetrators, and to work with at least one expert.
Here is an excellent resource on Victim-Offender Dialogue through California’s Office of Victim and Survivor Rights and Services: https://www.cdcr.ca.gov/victim-services/vod/
Alter, Charlotte. Effective Altruism Promises to Do Good Better. These Women Say It Has a Toxic Culture Of Sexual Harassment and Abuse. Time Magazine. February 3, 2023. https://time.com/6252617/effective-altruism-sexual-harassment/
This is information through a talk at the 2023 National Sexual Assault Conference by California Department of Corrections psychologist Dr. Deirdre D’Orazio. https://www.nationalsexualassaultconference.org/2023/06/14/rebalancing-the-prevention-continuum-through-lessons-learned-from-offense-treatment/
Several attendees asked if it was possible that the perpetrator became “better” at covering up; Dr. D’Orazio said that was not controlled as data was gathered.
Restorative Justice: Healing California’s Youth. California Court’s Newsroom. August 2, 2018. https://newsroom.courts.ca.gov/news/restorative-justice-healing-californias-youth