In 2015, I was raped at Baylor University by someone I knew and trusted. In the aftermath, I wanted two things: healing, and for him not to rape anyone else. I believed that the way to achieve both was to incarcerate him. I reported the rape to the Baylor Police Department, where an officer told me that “no sane DA” would pick up my case because I had no eyewitnesses and he claimed consent.
A Title IX investigation took four months and was more traumatic than the rape itself. I was interrogated multiple times. Despite my list of 25 witnesses who could attest to changes in my behavior after the rape and a counselor who diagnosed me with post-traumatic stress disorder, he was found not responsible for the assault and I lost my appeals. I persuaded then-Baylor president Ken Starr to meet with me. He told me he believed a “miscarriage of justice” occurred, and that he’d do something; two months later, nothing had been done. After a blog post about my experience was shared widely, Starr—a former prosecutor, onetime defense attorney for Jeffrey Epstein, and the author of a report on the Clinton administration that included a salacious section on the former president’s sexual misconduct in the Monica Lewinsky scandal—left Baylor over the mishandling of multiple sexual assault complaints.
Reporting my rape incurred hate mail from my fellow students and threats of expulsion from Baylor’s administration. And nothing ever happened to the person who raped me. Since then, I have become convinced that the criminal legal system is not the solution to sex offenses. Now, talking about restorative justice as a solution to rape instead of incarceration has resulted in me being called “stupid,” “naive,” “malevolent,” and a “bitch.”
Perhaps this anger derives from the fact that despite the prevalence of sexual assault and prominence of the #MeToo movement, responses to and remedies for the problem of rape remain woefully inadequate. The criminal legal system is touted as the solution to violent crime, yet it routinely fails to provide redress to sexual assault victims. In 2017, the clearance rate for rape cases was only 34.5 percent.
But increasing prosecution rates of those accused of rape does not heal victims or center their experiences because the criminal legal system, even when it operates as the carceral machine it’s designed to be, does not—indeed, cannot—provide the response victims need and deserve. Instead, it retraumatizes victims, makes communities less safe, and perpetuates rape culture.
Research demonstrates that many victims of sexual trauma heal primarily through regaining power and control over what occurs in the aftermath of an assault, including the ability to make choices about when, how, and with whom to share their story, and the ability to limit their exposure to situations that may cause flashbacks or retraumatization.
However, the criminal legal process removes power and control from victims and places it in the hands of entities that represent the interests of the state instead of the person harmed. Victims who do not wish to testify may even be compelled to do so via a court order, under threat of imprisonment. If one were to design a system to inflict trauma on survivors it would look a lot like our current criminal legal system
If they do testify, victims do not control their story. Instead, it is extracted from them through a series of questions and answers by the prosecutor in furtherance of the state’s interests. Victims also submit to cross-examination by a defense attorney, which can be deeply destabilizing. It triggers flashbacks to the initial trauma, and can cause the survivor to question whether their trauma is even worthy of redress.
But most cases don’t even make it to trial. The overwhelming majority of them are resolved by plea agreement. While this may spare victims from reliving trauma, it removes one of the strongest aspects of the criminal legal system: its adversarial nature. In a plea-driven system, the government’s burden of proof is largely removed resulting in over-sentencing, disparate treatment of poor or non-white populations and wrongful convictions. In this system, what we get is not justice but instead bartering between the state and the defense over statutory elements of an offense or the length of a prison sentence.
Even if a victim runs the criminal legal gauntlet to a “successful” resolution, the system’s response is only retribution. Justice is defined as the number of years that a perpetrator spends in a cage. But prison is not justice nor is it a place of rehabilitation, accountability, or redemption. Prison is the infliction of trauma onto a person who has committed harm. And when people convicted of sex offenses complete their prison terms, they often face a lifetime of punishment on our swollen sex offense registries.
In the criminal legal system, retribution is conflated with holding the accused accountable, and it also precludes accountability. Danielle Sered, a restorative justice advocate, wrote in her recent book, “Until We Reckon,” that accountability requires the acknowledgment of responsibility for one’s actions and the impact of one’s actions on others, and the expression of genuine remorse. The individual must take action to repair the harm and that they refrain from committing similar harm in the future.
In contrast, the criminal legal system’s retribution-centered response disincentivizes the accused from admitting or acknowledging the harm they have caused. The accused often resort to denial not from a desire to skirt responsibility for harm, but out of desperation to avoid the horrors of prison. In the criminal legal system, there is often no benefit to accepting responsibility excluding in the carceral context of provisions like “acceptance of responsibility” in the federal criminal legal system which can reduce a prison sentence.
“The criminal justice system is like kryptonite to accountability,” wrote Sered. “For all the ravages of prison, it insulates people from the human impact of what they have done.” Similarly, in a New York Times opinion piece in March, “The New Jim Crow” author Michelle Alexander wrote that “the only thing prison requires is that people stay in their cages and somehow endure the isolation and violence of captivity.” Prison, Alexander rightly pointed out, “lets people off the hook, as they aren’t obligated to answer the victim’s questions, listen to them, honor their pain, express genuine remorse, or do what they can to repair the harm they’ve done.”
Not only does incarceration as a response to rape fail to heal victims, it also makes communities less safe. Prisons are “criminogenic”—meaning that instead of rehabilitating individuals, prisons make them more likely to commit crimes in the future.
Yet incarceration or other forms of supervision by the state are all that the criminal legal system has to offer. Because society believes that incarceration and justice are synonymous, victims may naturally expect that the mental and physical havoc caused by rape will cease when their assailant is behind bars, but are devastated to discover that the anxiety, fear, nightmares, flashbacks, and bouts of fury that are inherent in PTSD remain—and may have even been amplified—despite a “successful” prosecution.
The criminal legal system fails egregiously with respect to what victims are owed. It precludes healing, makes communities less safe, and ultimately perpetuates rape culture. Victims should have other methods by which empathetic people can hear their narrative, protect them while they recover, and provide the resources they need to heal.
Alternative systems that center the needs of victims are broadly termed “restorative justice.” Instead of seeing crime as simply a violation of law, restorative justice—with the consent of the victim—approaches crime as an infliction of harm, and seeks to bring together those who have caused the harm and those who have experienced it and have been affected by it in order to create a specific plan of repair. Victims’ questions are answered. Recognition of the harm wrought is articulated. Sincere apologies are given. Those who have caused harm are held accountable in a way that the criminal legal system actively prevents, which results in lower recidivism rates. Restorative justice rejects the notion that “punishment is an adequate substitute for healing.” We should, too.