California Colleges Experiment With Restorative Justice in Sexual Assault Cases

When a sexual assault survivor walks into Alexandra Fulcher’s office at Occidental College, it’s the first step in a process fraught with consequences for both the survivor and the accused.

If Fulcher, the school’s Title IX director, launches an official investigation, the survivor could be asked to recount their trauma and cross-examined about it in a live hearing. Their alleged assaulter could be expelled.

But for the past year, survivors at Occidental have had another option. They can participate in a restorative justice conference with the person who harmed them, in which that person hears about the impact of their actions, takes responsibility and commits to a plan to help repair the harm — and prevent it from happening again.

The conferences draw on a long tradition of restorative justice, a philosophy that eschews punishment in favor of coming up with collective solutions to address violence and harm within a community.

A handful of California colleges have recently begun using restorative justice in cases of sexual assault and harassment, or are seriously considering it. And Fulcher said it’s a path that an increasing number of survivors at Occidental are choosing.

“This age group, at least at Oxy, is less interested in punitive options,” she said.

One argument for making restorative justice available is that it may encourage more survivors to come forward. An overwhelming majority of survivors of campus sexual violence never file a report, and of those that do, few choose to pursue disciplinary action, said David Karp, director of the Center for Restorative Justice at the University of San Diego.

Title IX rules passed under the Trump administration made the formal complaint process less attractive for sexual assault survivors by requiring that they be cross-examined in live hearings, while at the same time giving schools more flexibility to pursue informal resolutions, Karp said. (The Biden administration has proposed new rules that would give colleges flexibility in whether to require cross-examination.)

Both of those changes helped spur interest in restorative justice, he said — including at his own campus, which is currently in its first year of offering restorative justice for Title IX cases.

“It seems pretty clear that there’s student demand and that Title IX administrators are really dissatisfied with the current options and would like to see the options expand,” he said. “There’s some legitimate worry about bad implementation or retraumatization and reasons why we should be careful.”

A sexual harassment scandal at California State University this year that led to the resignation of the university’s chancellor and numerous reports of campus administrators mishandling Title IX cases has focused attention on how California colleges resolve such cases. The federal civil rights law, which turned 50 this year, protects students from sex-based discrimination in schools, including sexual violence. Meanwhile, an influential committee of lawmakers and judges earlier this month recommended that the state give all crime victims the right to participate in restorative justice programs.

Preparing a successful restorative justice conference — also known as a restorative justice circle — can take months, said René Rivera, a facilitator for the Ahimsa Collective, a nonprofit that conducts them for Occidental students.

First, both parties must agree to participate. The facilitators meet separately with both parties, making sure they have support systems in place — therapists, friends, family. The survivor decides what they want the outcome of the circle to be, and the person who acknowledges causing harm starts to face up to what they’ve done. The accused is often asked to write a letter to the survivor, which may never be read to them, but can help the accused sort out their own feelings and take accountability before addressing the survivor face-to-face.

“It can take a long time to get to a place where everyone feels ready to meet each other and listen to each other,” said Rivera. “We as facilitators need to feel confident that there will not be more harm in bringing these two people together.”

The circle, which usually lasts several hours, is not over until the accused has made an apology and the survivor is able to ask any questions of the accused. The person who’s caused the harm then takes the steps the survivor has requested, which could include things like getting therapy, or quitting an extracurricular activity so the survivor doesn’t have to run into them on campus.

Nationally, Rutgers University in New Jersey has been using restorative justice since 2016 — first to treat less-serious incidents such as alcohol violations and later in Title IX cases. Amy Miele, the university’s associate director of student affairs, compliance and Title IX, vividly remembers the first restorative justice conference she organized in a sexual assault case.

The student who had been assaulted chose restorative justice because “she did not want another man of color with a disciplinary record,” Miele said. “She said, ‘I want healing and justice and to be able to move on from this, I have a lot of questions I want answered, and I don’t feel comfortable going up to him on my own.’”

The parties met in a conference room, Miele said, sitting around a table stocked with water bottles, tissues, drawing paper, pens and snacks. But within a couple minutes, both students erupted with rage as the accused person grappled with the reality of what he had done, and the harmed person confronted her assaulter for the first time.

Miele and her team took a pause, allowing both students to calm down and giving them stress balls and water bottles to hold for the rest of the conference. Returning to the circle relaxed and prepared, the accused did something no one was expecting — he said, “I’m signing,” apologized and accepted full responsibility for his actions.

“In that moment when he looked them in the eyes and said, ‘I’m sorry,’ it was as if we could all breathe again, like the fog lifted,” Miele said. The survivor told Miele the process had restored her faith in humanity, Miele said.

Evidence of success

While there’s little data available about the effectiveness of restorative justice in preventing future sexual assaults, some studies of youth convicted of other crimes have shown that those who participate in restorative justice conferences are less likely to be rearrested.

In a survey gauging Rutgers’ students’ satisfaction with the restorative justice process, one student accused of assault said, “The explorations of mine and (survivor’s) perspectives was done very well. I was shocked at times to hear things I had never even thought of.”

The conference “showed me a game plan that I could follow to alleviate the harm done to (Complainant) and to better myself,” another wrote.

Besides having the potential to increase reporting of sexual assaults, restorative justice is also a rejection of a racist criminal justice system in favor of something more equitable, said Domale Dube Keys, a former lecturer at the University of California Los Angeles who wrote a paper recommending that colleges offer restorative justice in Title IX cases.

“A restorative justice approach really is a way of recognizing that if we keep on this track of, ‘We need to police, we need to do this law-and-order approach to sexual violence,’ it’s people of color and gender non-conforming people that are going to suffer,” said Keys. “They are going to have less resources to go the legal route, less public support when it comes to believing their stories. It’s a way of recognizing that our system is flawed.”

Some Indigenous tribes have been practicing forms of restorative justice for generations. So when professors on Cal Poly Humboldt’s sexual assault prevention committee were considering using restorative justice for sexual misconduct, they took inspiration from the local Yurok tribe, whose members had experience using the practice to heal after domestic violence.

“In our community, the connections between us are so thick, when something bad happens to one of us, we all experience it in some way,” Blythe George, a Yurok tribal member and sociology professor at UC Merced, said in a presentation at Cal Poly Humboldt in April.

When a tribal member is banished, she said, “their songs go with them, the teachings that their parents and grandparents took the time to teach them … and that’s why it’s so important for us to have this restorative justice component, because we are actively reclaiming our people from a system that has done nothing but try to take us or kill us for the better part of centuries now.”

Fair to survivors?

But critics of using restorative justice for campus sexual assault cases say that the power dynamics are different.

“What makes restorative justice work is that it’s addressing a deep systemic and historical prejudice that a lot of wrongdoings happen because of systemic oppression,” said Gabi Jeakle, a student at Loyola Marymount University who has worked to improve the university’s Title IX resources and is herself a survivor. But statistically speaking, she said, much sexual assault happens at the hands of historically privileged people. “It’s oftentimes white men in fraternities harming women. It’s important to look at that context and say that’s not the same argument as someone who has been a victim of the school-to-prison pipeline.”

Jeakle acknowledged that for the colleges that are trying this, survivors get to choose whether to pursue restorative justice or a traditional investigation. But when you’ve recently undergone trauma, she said, “it can be difficult to know what you need.”

Federal law bars restorative justice in cases where a professor has assaulted or harassed a student. And potential power differentials between survivor and accused have also surfaced as an issue at Cal Poly Humboldt, where Maxwell Schnurer, a communications professor who chairs the university’s sexual assault prevention committee, said he’s concerned that restorative justice could lead to a “survivor being asked to take care of someone who had harmed them.”

Committee members have received training in restorative justice but said they haven’t yet decided whether it could work on their campus.

At UC Berkeley, restorative justice advocates were developing a separate pathway for handling cases outside the university’s Title IX office, said Julie Shackford-Bradley, director of the university’s Restorative Justice Center.

But they soon ran into a pitfall: A key tenet of restorative justice conferences is confidentiality. But most university employees — including those who would be running the conferences — are mandatory reporters, meaning that by law, they must tell the Title IX coordinator if they hear of any sexual harassment or assault happening on campus.

The center ended up scrapping the plan, Shackford-Bradley said, at least until the legal issues can be resolved.

Mandatory reporting has not been an issue at Occidental, said Fulcher, since any cases that are referred to the Ahimsa Collective have already been reported to the university’s Title IX office.

“In terms of the parties’ satisfaction with the (restorative justice) process, it is leaps and bounds more than our typical investigation and hearing process,” Fulcher said — in part because restorative justice gives both survivor and respondent more control over the outcome.

Rivera, the facilitator, said that Occidental’s experiment with restorative justice shows that “there’s an alternative (to punishment) and the alternative is to have a conversation that is actually as healing [as] possible for both parties, and where the person who has caused the harm is gonna be treated as a full human being in that process.”

“That’s something that personally gives me a lot of hope. If we can do that on college campuses, it feels so much more possible to start to have those kinds of alternatives in other areas.”

Even at California campuses where restorative justice conferences aren’t taking place, advocates for survivors are going beyond traditional Title IX investigations, finding ways to redress harm, involve the community and prevent future assaults.

UC Berkeley offers survivor circles, in which students can share their stories and build community with other sexual assault survivors.

And at Loyola Marymount, Jeakle is getting fraternities to contribute to a fund that supports survivors of sexual assault who need help with travel and medical expenses.

“You don’t want to forgive the entire institution because one individual apologizes,” she said. “Asking people to be part of a cultural shift is more important.”