Survivor Injustice Asks Us To Reconsider What Justice Looks Like For Crime Victims

by Kylie Cheung

In her new book, Survivor Injustice, journalist and Jezebel staff writer Kylie Cheung explores how the carceral state operates within patriarchy and colludes with perpetrators of interpersonal gender-based violence to exercise control over survivors and pregnant-capable people. In this week’s newsletter, we’re publishing an excerpt from the book, which asks us to reconsider what justice really looks like for crime victims.

Cheung begins this chapter by recounting the story of a sexual assault survivor who reported her assault to her college. Though her assailant was found responsible by the school, he filed a defamation lawsuit against her, forcing her to transfer schools, delay her graduation, and spend over $100,000 trying to defend herself.

What does accountability mean for an assailant like this?

There is a misconception that supporting abolition and decarceration means being opposed to accountability. No victims’ paths to healing will ever look entirely the same—but many would agree that repeated claims of innocence from their perpetrators, accusations that they are liars, prolonged and retraumatizing trials and adjudication, inflict greater harm on them. What many survivors are seeking is some form of apology and remedy, some acknowledgment from their perpetrator of the harm they’ve committed. But the threat of incarceration and a lifetime of punishment obviously has the impact of discouraging this outcome, if not rendering it altogether impossible.

Punishment for perpetrators can certainly, understandably bring satisfaction for both victims and their supporters. But as abolitionist scholar-activist Mariame Kaba has argued, personal anger and vendettas shouldn’t be the driving force behind policymaking. “It’s not wrong to feel what you feel—relief, or even happiness—when the system snaps up the powerful, but the only way to achieve real justice is to build it ourselves, outside of the system,” Kaba has said. “Abolitionism is not a politics mediated by emotional responses.” State-rendered punishment for abusers also doesn’t improve the material conditions of victims’ lives; it doesn’t provide them with mental health services or other health care, or address the economic ramifications of surviving abuse by compensating them in any way.

As the abolitionist writer Micah Herskind has written, “Our response to harm does not need to be either a cage or doing nothing at all, though these are generally the only options on offer from the state.” Further, “punishment, consequences, and accountability are distinct categories.” And while abolitionists oppose policies rooted in punishment—“the infliction of cruelty and suffering on people”—they “firmly believe in consequences (requirements for and demands made of those who have caused harm), which are determined in direct relationship to the harm in question,” Herskind wrote. These processes involve all who were impacted by the harm in question to collectively determine steps toward accountability and call on the perpetrator to “[take] responsibility for harm caused and [work] toward repair and changed behavior.”

Anti-carceral scholars and advocates have put forth frameworks known as transformative justice and restorative justice to address and repair harm without further reproducing harm or relying on processes that retraumatize victims. Restorative justice brings together the victim, perpetrator, and the community without imposing the involvement of state actors or law enforcement. It centers the victim and their needs to heal and determines how the perpetrator can make amends as well as what needs to be done to ensure the community at large feels safe. Transformative justice is broader—it requires us to proactively work to change the social conditions and systemic inequities that cause harm to happen in the first place.

“Transformative justice asks how we can respond to harm without creating more harm and transform the conditions that led to harm. A transformative justice framework rejects the victim-perpetrator binary in recognition that we all experience and cause harm,” Herskind wrote. Restorative justice and transformative justice go hand in hand. They’re rooted in an understanding that the carceral state is fundamentally unequipped to address issues of interpersonal violence and harm; instead it reproduces the conditions that lead to violence—the funding of prisons and policing at the expense of community resources—and disproportionately, deliberately targets people of color and marginalized people. As I’ve explored at length in this book, state violence and interpersonal violence are inseparable from each other—as a result, the state can never be a reliable arbiter to address interpersonal harm and violence.

In 2021, I spoke with L. Tomay Douglas, a restorative justice practitioner working for the Center for Restorative Justice at the University of San Diego, about her work to promote restorative justice practices on campus. Douglas believes a common misconception about restorative justice is that it’s a “soft science” and gives perpetrators of harm an “easy out.” Instead, she says, on some level, it can present an even greater challenge than carceral “solutions”—it forces perpetrators to reflect deeply, to sincerely acknowledge and reckon with the reality that they’ve harmed someone and must take meaningful steps to fix this. “That thinking—of restorative justice as ‘soft’—is the result of a punitive mindset,” Douglas said. “What [restorative justice] does is give agency to the survivor. It’s the community coming together to heal itself, not including institutions and police that reproduce harm.” Restorative justice is essential to create an environment where survivors of sexual harm can feel safe coming forward without fear of retraumatization, Douglas explained.

Marilyn Armour, director of the Institute for Restorative Justice and Restorative Dialogue at the University of Texas at Austin, School of Social Work, has also written on popular misconceptions about transformative and restorative justice. “Restorative justice views crime not as a depersonalized breaking of the law but as a wrong against another person,” Armour wrote for Charter for Compassion, an international organization that advocates for and educates about restorative justice. “Accordingly, restorative justice seeks to elevate the role of crime victims and community members; hold offenders directly accountable to the people they have harmed; and restore, to the extent possible, the emotional and material losses of victims by providing a range of opportunities for dialogue, negotiation, and problem solving.”

Armour notes that in 1994 restorative justice “took a giant step toward becoming mainstream when the American Bar Association endorsed victim-offender mediation, a program usually associated with first-time offenders and minor crimes,” and later when the United Nations, the Council of Europe, and the European Union all “committed to promote restorative practices.”

Mainstream support for abolition has been steadily rising since the eruption of 2020’s national and global racial justice protests, and it was at this time that many people were first exposed to terms like restorative and transformative justice. Yet clearly, as Armour explains, these frameworks have existed and received support from institutions as influential as the United Nations for decades. Leading American universities, including Stanford, Brown, Skidmore College, the Universities of Colorado, Michigan, Kentucky, and Vermont, have already experimented with methods shifting away from traditional, adversarial Title IX processes that can leave victims retraumatized and unsupported; some of these universities have claimed to embrace restorative justice models to address harm.

The American College Personnel Association has written of Title IX procedures: “Whether one is a fan of the Obama-era Title IX guidance or a critic, the debate about campus sexual assault has been narrowly framed in terms of an adversarial process that leaves only winners and losers, often ending with the ‘winners’ as just as miserable as the ‘losers.’ Adjusting policy and procedure to tip slightly in favor of the complainant or the accused does not remove an intractable dynamic of secondary victimization, collective distrust, frustration, dissatisfaction, and professional burnout.” The American Bar Association 2017 Task Force on College Due Process Rights and Victim Protections explicitly called for a shift to restorative justice practices in response to endemic campus sexual assault.

Still, claiming support for restorative justice practices is one thing—actually providing this support is another. What does “restorative justice” in words mean when nearly all universities that have attempted to co-opt this term still fund and employ campus police officers, or contract with local police departments, inevitably causing survivors and particularly those of color to feel unsafe?

From Survivor Injustice: State-Sanctioned Abuse, Domestic Violence, and the Fight for Bodily Autonomy by Kylie Cheung published by North Atlantic Books, copyright © 2023. Reprinted by permission of publisher.​​

ICYMI — From The Appeal

Rosa Jimenez has finally been exonerated of a crime that never occurred, but she’s still fighting for her life. While incarcerated, she developed kidney disease and now needs a life-saving kidney transplant. From The Appeal Archives: Rosa Jimenez Went To Prison For Murdering A Child. Four Judges Have Said She’s Most Likely Innocent

The impulse to blame a female caregiver for failing to be a perfect mother can blind police and prosecutors to other potential causes of death—a critical factor in many women’s wrongful convictions. A child being in a woman’s care can be enough to transform her from a grieving mother to a suspect.

Milwaukee advocates are expressing concern and confusion after judges suddenly tried to shut down the city’s court diversion program last month with no explanation. This story is part of a collaboration between Wisconsin Watch, Milwaukee Neighborhood News Service and The Appeal.

Federal public defenders say their clients are already being harmed by the U.S. Supreme Court’s ruling in Jones v. Hendrix which makes it nearly impossible for some innocent prisoners to have their claims heard in court.

For the past seven summers, Kwaneta Harris has lived in solitary without air conditioning, weathering temperatures that regularly reached 110 degrees.

Organizers with Atlanta’s “Stop Cop City” movement are in the midst of a referendum effort that would put the fate of the city’s $90 million police training facility up for a vote this November.

An investigation co-published with Mindsite News found that a law originally set up to provide humane treatment to mentally ill people in crisis has become a terrifying dragnet for kids, with Black children under 10 greatly overrepresented.

That’s all for this week. As always, feel free to leave us some feedback, and if you want to invest in the future of The Appeal, donate here.