Ackerman and Sardina RJ in Cases of Sexual Harm

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RESTORATIVE JUSTICE IN CASES OF SEXUAL
HARM
Alexa Sardina, Ph.D. t & Alissa R. Ackerman, Ph.D. I
IN TROD U CTION ........................................................................ 1

I. THE IMPACT OF THE CRIMINAL LEGAL SYSTEM ON
THOSE WHO HAVE BEEN SEXUALLY HARMED .................. 3
Secondary Victimization: Underreporting, Police
Interactions, and Case Attrition................................ 4
II. A BRIEF HISTORY OF POST-CONVICTION SEX CRIMES
P OL IC IE S .......................................................................... 13
III. THE ETIOLOGY OF SEXUAL HARM....................................... 21
IV. WHAT IS RESTORATIVE JUSTICE? .................................... 25
How Is Restorative Justice Different? ............................ 28
Is Restorative Justice Effective? ..................................... 30
V. THE JOURNEY TO RESTORATIVE JUSTICE FOR CASES OF
SEXUAL H ARM ............................................................... 32
Understandingthe Needs of People Who Have Been
Sexually Harmed......................................................... 33
Understandingthe Needs of People Who Have
PerpetratedSexual Harm......................................... 39
VI. BUILDING OUR PROFESSIONAL PRACTICE ........................ 40
Models of Restorative in Cases of Sexual Harm ............ 42
Case Example: One-on-One Dialogue.......................... 44
Case Example: VRJ...................................................... 49
Is Restorative Justicefor Sexual Harm Effective? ...... 50
The Limits of Restorative Justice and Sexual Harm.......... 52
VII. TOWARD A RESTORATIVE FUTURE.................................. 55
INTRODUCTION
In 1999, both authors of this paper were raped. As a freshman in

college, Alexa was raped at knifepoint by a stranger that broke into her
T Alexa Sardina, Ph.D., is Assistant Professor of Criminal Justice, California State Uni-
versity, Sacramento and Co-founder of Ampersands Restorative Justice.
$ Alissa R. Ackerman, Ph.D., is Associate Professor of Criminal Justice, California State
University, Fullerton and Co-founder of Ampersands Restorative Justice.
1
2 CUNYLAWREVIEW [Vol. 25.1
dorm and hid in the shared bathroom. Alissa was a junior in high school
when she was raped by a young man after leaving a house party with him
to walk on the beach. Alexa reported her rape to law enforcement and
subsequently endured a trial that ended in a guilty verdict and a significant
prison sentence for the man who raped her. Alissa never reported her rape
and remained silent about her experience for 15 years. Despite their
different journeys in the aftermath of sexual violence, the authors'
experiences impacted both their lives in significant ways that ultimately
led to their career paths as sex crimes experts and restorative justice
practitioners. 1 Their individual and collective "survivor scholar"
experiences inform this paper.2
Part I summarizes the impacts of the criminal legal system on
individuals who have been sexually harmed, explaining under-reporting,
police interactions, and case attrition. Part II frames the reasons why post-
conviction sex crimes policies such as a registration and community
notification are ineffective at reducing rates of sexual offending or
addressing the needs of individuals who have experienced sexual harm.
Part III explains the root causes of sexually harmful behavior, which
range from individual-level to societal influences. Part IV sets the stage
for an introduction to restorative justice. The authors focus on the use of
restorative justice more broadly, before discussing how restorative justice
is different from typical criminal legal options for addressing harmful
behavior. The authors then briefly summarize the effectiveness of
restorative justice based on the available literature. Part V expands on the
authors' individual journeys to restorative justice as sex crimes experts
and rape survivors, before addressing the often unmet needs of people
i See Types of Sexual Violence, RAINN, https://perma.cc/J4WP-6WU5 (last visited Jan.

23, 2022) ("The term 'sexual violence' is an all-encompassing, non-legal term that refers to
crimes like sexual assault, rape, and sexual abuse."). However, throughout this paper the au-
thors use two terms: "sexual violence" and "sexual harm." Sexual harm is a more inclusive
term, as some people who have experienced sexual harm do not feel that they have experi-
enced violence. Their experiences are still valid and must be included in conversations. The
authors also use sexual harm when speaking about their work. They use the term sexual vio-
lence to be consistent with how these acts are referred to in specific research articles.
2 The authors define "survivor scholar" as any individual who is both a person who has
experienced sexual harm and a researcher who studies sexual harm and/or the people who
commit sex crimes. The authors seek to always utilize person first language because it human-
izes individuals who have experienced sexual harm and who have perpetrated harm. Person
first language allows individuals to choose words for their experiences that suit them. Every
effort is made to refrain from using terms like "victim," "survivor," or "perpetrator." The au-
thors have chosen to use the term survivor for themselves, but throughout this article readers
will see the terms "individual who experienced sexual harm" and "individual who perpetrated
sexual harm." This language can be difficult to accept, but the authors maintain a restorative
perspective that values the humanity of all people. The authors believe that no person can be
defined by one experience or behavior.
2022] RESTORATIVE JUSTICE IN CASES OF SEXUAL HARM 3
who have also experienced sexual harm. The authors explain the justice
needs of people who have perpetrated acts of sexual harm. Part VI focuses
exclusively on restorative justice as a tool to use in these instances,
including case studies and the limitations of restorative frameworks. Part
VII concludes with a renewed hope for a restorative future.
I. THE IMPACT OF THE CRIMINAL LEGAL SYSTEM ON THOSE WHO HAVE

BEEN SEXUALLY HARMED
Sexual violence is ubiquitous and impacts millions of people each

year. 3 It cuts across every demographic, including age, gender, economic
status, race, ethnicity, religion, sexual orientation, and education level.4
According to the Federal Bureau of Investigation (FBI), a forcible rape
occurs in the United States every 3.8 minutes.5 Almost 20% of women
and 8% of men are sexually abused before the age of 18.6 One in four
women and one in ten men will experience sexual harm or stalking in
their lifespan.7 Almost 50% of gender expansive people have experienced
sexual harm in their lifetime.' While sexual violence is a pervasive social,
legal, and public health issue, research indicates that certain groups are at
a greater risk for sexual victimization.' Approximately one in five Black
women, and one in seven Hispanic women in the U.S. have experienced
3 PREVENTING SEXUAL VIOLENCE, CTRS. FOR DISEASE CONTROL AND PREVENTION 1

(Feb. 5, 2021), https://perma.cc/FTM5-R9Y2; SHARON G. SMITH ET AL., NATIONAL INTIMATE
PARTNER AND SEXUAL VIOLENCE SURVEY 2-3 (Ctrs. for Disease Control & Prevention ed.,
2018) (reporting that nearly 52.2 million women (43.6%) have experienced sexual harm in
their lifetime, with 4.7% of women experiencing it in the 12 months preceding the survey and
that approximately 27.6 million men (24.8%) experienced some form of contact sexual vio-
lence in their lifetime, with 3.5% of men experiencing contact sexual violence in the 12 months
preceding the survey) [hereinafter Sexual Violence Survey].
4 See generally Sexual Violence Survey, supra note 3.
5 2018 Crime Clock Statistics, FED. BUREAU OF INVESTIGATION, https://perma.cc/39YD-
ZJ7J (last visited Jan. 23, 2022).
6 Noemi Pereda et al., The Prevalence of Child Sexual Abuse in Community and Student
Samples: A Meta-Analysis, 29 CLINICAL PSYCH. REV. 328, 334 tbl.4 (2009) (showing that the
prevalence of child sexual abuse in the United States was 25.3% for women and 7.5% for
men).
? Sexual Violence Survey, supra note 3, at 7.
8 SANDY E. JAMES ET AL., NAT'L CTR. FOR TRANSGENDER EQUAL., THE REPORT OF THE
2015 U.S. TRANSGENDER SURVEY 15 (2016) (stating that 47% of transgender respondents had
been sexually assaulted at some point in their life and 54% of transgender respondents expe-
rienced some form of intimate partner violence (IPV)).
I See Karen McQueen et al., Sexual Assault: Women's Voices on the Health Impacts of
Not Being Believed by Police, BMCWOMEN'SHEALTH, May 22, 2021, at 1, 1, https://perma.cc

/DM78-HQEH.
rape at some point in their lives.10 More than one-quarter of women who
identify as American Indian or Alaska Native and one in three women
who identify as multiracial report victimization in their lifetime."
Furthermore, women employed in the military, who live and/or work in
underprivileged environments, have a disability, identify as LGBTQ, or
are a student are also at a greater risk for sexual assault."
Acts of sexual harm against men do not get the same empirical
attention and emphasis as acts involving female victims, which creates a
false myth that men cannot be sexually victimized.13 Therefore, there are
fewer data sources to evaluate the extent of victimization against males.
However, 1 in 71 men surveyed report being raped in their lifetime.14 This
figure is significantly underestimated, as men who are sexually harmed
often do not disclose or report these experiences due to shame and
embarrassment. 15
Secondary Victimization: Underreporting, Police Interactions, and Case

Attrition
Despite these alarmingly high rates of sexual violence, there is
reason to believe that rates of sexual harm are much higher, as these acts
are the least likely to be reported. For example, only about 36% of rapes
and 34% of attempted rapes are reported to police. 16 Furthermore,
approximately 60% to 70% of adults that experienced childhood sexual
abuse never reported the abuse as children, and only a few, approximately
10% to 18%, reported their abuse to officials in their lifetime. 7
Collectively, only a small minority of people will report their experiences
to law enforcement. 18
10 MICHELE C. BLACK ET AL., NAT'L CTR. FOR INJURY PREVENTION & CONTROL & CTRS.
FOR DISEASE CONTROL & PREVENTION, NATIONAL INTIMATE PARTNER AND SEXUAL VIOLENCE
SURVEY: 2010 SUMMARY REPORT 2-3 (2011), https://perma.cc/ET9Q-5KXM.
11 BLACK ET AL., supra note 10, at 3.
12 McQueen et al., supra note 9, at 1.
13 See Scott M. Walfield, "Men Cannot be Raped": Correlates of Male Rape Myth Ac-
ceptance, 36 J. INTERPERSONAL VIOLENCE 6391, 6394 (2018).
14 BLACK ET AL., supra note 10, at 1.
15 See Marjorie R. Sable et al., Barriers to ReportingSexualAssaultfor Women andMen:
Perspectivesof College Students, 55 J. AM. COLL. HEALTH 157, 159-60 (2006).
16 CALLIE MARIE RENNISON, U.S. DEP'T OF JUST., BUREAU OF JUST.
STAT., NCJ 194530,
RAPE AND SEXUAL ASSAULT: REPORTING TO POLICE AND MEDICAL ATTENTION, 1992-2000 1
(2002).
17 Kamala London et al., Disclosure of Child Sexual Abuse: What Does the Research Tell
Us About the Ways that Children Tell? 11 PSYCH., PUB. POL'Y, & L. 194, 203 (2005).
18 See Manon Ceelen et al., Characteristicsand Post-DecisionAttitudes of Non-Report-
ing Sexual Violence Victims, 34 J. INTERPERSONAL VIOLENCE 1961, 1962 (2019); see RACHEL
E. MORGAN & JENNIFER L. TRUMAN, U.S. DEP'T OF JUST., NCJ 255113, CRIMINAL
VICTIMIZATION, 2019 8 (2020), https://perma.cc/UG68-7W6U.
Underreporting may be the result of many individual and societal

variables. Many survivors feel a sense of shame and isolation after their
assault. 19 Shame is an emotion that is linked to a person's self-worth and
identity. 20 Survivors of sexual violence are especially susceptible to
shame when compared to people who have experienced nonsexual
victimization.2 1 One study found that 75% of women surveyed felt
ashamed about themselves after their assault.22 They were also more
likely to say that they are ashamed or embarrassed by their victimization
when compared to victims of other types of violence. 23 Many people who
experience sexual harm also report feeling dirty or disgusted afterwards
and sometimes blame themselves.24 Negative emotions, like shame, may
not only impact how individuals who have experienced sexual harm feel
about themselves, but may also influence how they respond to the crime
afterwards.2 5
People who have experienced sexual harm report that their
victimization often begins a lengthy process that involves continuous
interactions with various criminal legal professionals, including law
enforcement and attorneys. 2 6 Unfortunately, this contact with the criminal
1 See Candace Feiring & Lynn S. Taska, The Persistence of Shame Following Sexual
Abuse: A LongitudinalLook at Risk andRecovery, 10 CHILD MALTREATMENT 337, 345 (2005)
(discussing the persistence of abuse-related shame and post-traumatic stress disorder
("PTSD") in survivors of child sexual abuse); see also Sable supra note 15, at 159; Judith
Lewis Herman, Justice from the Victim's Perspective, 11 VIOLENCE AGAINST WOMEN 571,
598 (2005).
20 Karen G. Weiss, Too Ashamed to Report: Deconstructingthe Shame of Sexual Victim-
ization, 5 FEMINIST CRIMINOLOGY 286, 293 (2010); world renowned shame researcher, Dr.
Brend Brown defines shame as "the intensely painful feeling or experience of believing that
we are flawed and therefore unworthy of love and belonging-something we've experienced,
done, or failed to do makes us unworthy of connection." See Brend Brown, Shame v. Guilt,
BREN BROWN (Jan. 15, 2013), https://perma.cc/5PQH-5SSB.
2 Weiss, supra note 20, at 287.
22 See Maria E. Vidal & Jenny Petrak, Shame and Adult Sexual Assault: A Study with a
Group of Female Survivors Recruited from an East London Population, 22 SEXUAL
&
RELATIONSHIP THERAPY 159, 159 (2007).

23 See Richard B. Felson & Paul-Philippe Pard, The Reporting ofDomestic Violence and
Sexual Assault by Nonstrangers to the Police, 67 J. MARRIAGE & FAM. 597, 606 (2005).
24 See Sarah E. Ullman, Social Reactions, Coping Strategies, andSelf-blame Attributions
in Adjustment to Sexual Assault, 20 PSYCH. WOMEN Q. 505, 508 (1996); see also Feiring
&
Taska, supra note 19, at 337, 340.

25 See, e.g., Maureen MacGinley et al., A Scoping Review ofAdult Survivors'Experiences
of Shame Following Sexual Abuse in Childhood, 27 HEALTH & SOC. CARE COMMUNITY 1135,
1140 (2019) (finding that adults who have experienced child sexual abuse and have shame
associated with that abuse may experience shame related mental health consequences).
26 See generally Rebecca Campbell, Rape Survivors' Experiences with the Legal and
Medical Systems: Do Rape Victim Advocates Make a Difference? 12 VIOLENCE AGAINST
WOMEN 1 (2006).
6 CUNYLAWREVIEW [Vol. 25:1
legal system often does more harm than good. They often encounter
individuals who are skeptical about their claims, diminish their
credibility, minimize their experience, are dismissive of them entirely, or
are generally insensitive to their experience. 2 8 This phenomenon has been
termed "secondary victimization," or "the second rape," 29 and includes
behaviors by criminal legal professionals and others that exacerbate the
trauma of rape and other types of sexual harm. 30
The fear of secondary victimization may also influence reporting.
For example, women who have experienced sexual harm are more likely
to report their experience to formal support services when their
experience conforms to that of a "real rape" (e.g., they were assaulted by
a stranger): when they feel that they will be believed, when they think that
the probability for conviction is high, when they have sustained injuries
to corroborate their claims of forced intercourse, or if a weapon was
used. 31 These findings align with Alexa's decision to report. She believed
that, because she was assaulted by a stranger at knifepoint, her claims
would be undisputable. A study using data from the National Violence
Against Women Survey examined the reasons that survivors gave for not
reporting acts of sexual harm to the police. The decision to not report was
attributed to a belief that the police could not do anything about the crime,
fear that they would not be believed, fear of retribution, and feelings of
shame and embarrassment. 32
Although many of the reasons given for not reporting experiences of
sexual harm are common across most racial groups, research suggests
minority women choose not to report for reasons that differ from those of
White women. Factors that influence reporting decisions among Black
women include economic status, "fear of White racism, degree of
adherence to a Black cultural mandate to protect Black [men] from
27 Id. at 2.
28 See, e.g., Debra Patterson & Rebecca Campbell, Why Rape Survivors Participatein the
CriminalJustice System, 38 J. CMTY. PSYCH. 191, 196-97 (2010) (discussing survivors' con-
cerns that police would not believe their reports of victimization); but see generally ANDREA
J. RITCHIE, INVISIBLE NO MORE: POLICE VIOLENCE AGAINST BLACK WOMEN AND WOMEN OF
COLOR ch.5 (Beacon Press 2017).
29 Rebecca Campbell & Sheela Raja, Secondary Victimization ofRape Victims: Insights
from Mental Health Professionals Who Treat Survivors of Sexual Violence, 14 VIOLENCE
&
VICTIMS 261, 261 (1999).

30 Id. at 267.
31 See Janice Du Mont et al., The Role of "RealRape" and "Real Victim" Stereotypes in
Police ReportingPracticesof Sexually Assaulted Women, 9 VIOLENCE AGAINST WOMEN 466,
470 (2003).
32 PATRICIA TJADEN & NANCY THOENNES, U.S. DEP'T OF JUST., EXTENT, NATURE, AND
CONSEQUENCES OF RAPE VICTIMIZATION: FINDINGS FROM THE NATIONAL VIOLENCE AGAINST
WOMEN SURVEY 33 (2006).
criminal prosecution . .. and prior negative interactions with social

service agencies." 33 Furthermore, in the aftermath of sexual harm, women
of color are generally unlikely to seek assistance from predominantly
White-run agencies and institutions, including the criminal legal system. 34
Not only is sexual harm characterized by low reporting rates, but it
is also characterized by high rates of case attrition. Out of every 1,000
sexual assaults committed only 25 individuals accused will end up
incarcerated. 35 Though this is an estimation based on multiple sources of
government data, less than 1% of all rapes and attempted rapes lead to a
felony conviction.36 Over the past several decades, there have been
numerous legal interventions designed to address the challenges
associated with effectively moving cases of sexual harm through the
criminal legal system. 37 Of all the changes that have been made to address
underreporting and case attrition, there has been minimal change as it
relates to reporting, charging, prosecuting, or convicting the people that
perpetrate sexual harm.38
Underreporting and case attrition are largely attributed to adherence
to rape myths by those who have experienced sexual harm and various
actors that are a part of the criminal legal system. 39 Rape myths are
33 See Patricia A. Washington, DisclosurePatterns of Black Female Sexual Assault Sur-

vivors, 7 VIOLENCE AGAINST WOMEN 1254, 1257 (2001); see also Shaquita Tillman et al.,
Shattering Silence: Exploring Barriers to Disclosurefor African American Sexual Assault
Survivors, 11 TRAUMA, VIOLENCE, & ABUSE 59, 64 (2010).
34 See Washington, supra note 33, at 1257, 1274.
35 The Criminal Justice System: Statistics, RAPE, ABUSE, & INCEST NAT'L NETWORK
(RAINN), https://penna.cc/Q4D3-CYDF (last visited Jan. 23, 2022) [hereinafter The Criminal
Justice System: Statistics, RAINN]. For every 1,000 sexual assaults committed, 310 are re-
ported to the police, 50 reports lead to an arrest, 28 cases will lead to a felony conviction, and
25 of individuals will be incarcerated.
36 Andrew Van Dam, Less Than 10% ofRapes Lead to Felony Convictions. At Least 89%
of Victims Face Emotional and Physical Consequences, WASH. POST (Oct. 6, 2018),
https://perma.cc/H7SV-KNV3.
31 See Ethan Czuy Levine, Sexual Scripts and Criminal Statutes: Gender Restrictions,
Spousal Allowances, and Victim Accountability After Rape Law Reform, 24 VIOLENCE
AGAINST WOMEN 1, 3-4 (2017). By the 1970s and 1980s, all 50 states passed rape law reform
although the efforts "varied considerably in their capacity to protect victims," especially in
reducing the influence of the "real rape" stereotype. These changes included the removal or
lessening of requirements around victim resistance and corroboration, changing definitions of
rape or supplementing rape statutes with other offenses to address different forms of violence,
and a range of admissibility regarding the sexual history of victims. Unfortunately, research
suggests that these efforts have only minimally changed reporting, indictment, conviction, or
incarceration rates.
38 See Cassia Spohn & Katharine Tellis, The CriminalJustice System's Response to Sex-
ual Violence, 18 VIOLENCE AGAINST WOMEN 169, 170 (2012).

39 See Lucy Maddox, The Impact of PsychologicalConsequences ofRape on Rape Case
Attrition: The Police Perspective, J. POLICE CRIM. PSYCH. 33, 33-34 (2012); see also Mary C.
commonly held beliefs that can be found in most cultures and are
fundamentally gendered. They underscore the reality that sexual violence
against women and children is, to an extent, condoned, and normalized.40
Examples of common rape myths are "only bad girls get raped"; "any
healthy woman can resist a rapist if she really wants to"; "women ask for
it"; "women 'cry rape' only when they've been jilted or have something
to cover up"; and "rapists are sex-starved, insane, or both." 41 Adherence
to rape myths results in social and cultural stereotyping and silencing of
survivors of sexual harm. 42 Rape myths may also impact people that
experience sexual harm who may blame themselves for not preventing
the harm or for not defending themselves. 43 In part, this is why Alissa
never reported her rape to the police. She had lied to her parents about
where she would be that night and had gone for a walk on a secluded
beach with a young man she had just met at a party. She could not defend
herself against a much bigger and stronger person and believed that she
"let her rape happen." For all these reasons, Alissa remained silent. Her
experience of non-reporting is common. 44
Police play a key gatekeeping role in the progression of cases
through the criminal legal system. They decide whether a crime has
occurred, the number of resources to dedicate to suspect identification and
apprehension, whether to make an arrest, and whether to refer the case to
the prosecutor's office. 45 It is therefore important to understand the factors
that influence police decision-making in cases of sexual harm. As
Anders & F. Scott Christopher, A SociologicalModel ofRape Survivors'Decisions to Aid in

Case Prosecution, 35 PSYCH. WOMEN Q. 92, 93-94 (2011).
40 See Kimberly A. Lonsway & Louise F. Fitzgerald, Rape Myths in Review, 18 PSYCH.
WOMENQ. 133, 135-38 (1994).
41 See Martha R. Burt, CulturalMyths and Supportsfor Rape, 38 J. PERSONALITY & SOC.
PSYCH. 217, 217 (1980).
42 For example, researchers have found that many rape survivors may not disclose to an-
yone if they were under the influence of alcohol or drugs at the time of the offense. They
remain hidden survivors often because of self-blame due to perceptions that they are somehow
responsible for their victimization because they consumed alcohol or drugs. Additional re-
search indicates that women often do not report their sexual victimization because they do not
perceive themselves to be victims of rape. According to one study, only 27% of survivors
whose incidents met the legal definition of rape defined themselves as having been raped.
Mary P. Koss, Hidden Rape: Sexual Aggression and Victimization in a National Sample of
Students in Higher Education, 55 J. CLINICAL PSYCH. 3, 22 (1987).
43 See Eliana Suarez & Tahany M. Gadalla, Stop Blaming the Victim: A Meta-Analysis on
Rape Myths, 25 J. INTERPERSONAL VIOLENCE 2010, 2011 (2010).
44 In the authors' experience working with individuals who have been sexually harmed,
more than half report that they have not or will not engage formal reporting channels because
they fear they will not be believed, they do not think the criminal legal system can or will do
anything to help, or they feel shame regarding the sexually harmful experience.
5 See Jessica Shaw et al., The View from Inside the System: How Police Explain Their
Response to Sexual Assault, 58 AM. J. CMTY PSYCH. 446, 446 (2016).
previously mentioned, many survivors choose not to report due to

concerns that they will be retraumatized by the police, that they will not
be believed, or that not much will come of the case. 46 These are not
baseless concerns. One study found that almost half of those who reported
their sexual assault expressed dissatisfaction with the police interview. 47
Women who have been sexually harmed also report feeling shocked and
embarrassed when police officers treated them like they were the
problem, were insensitive to the trauma they have experienced, and were
insensitive to their personal needs. 48
Rebecca Campbell, a psychology professor, interviewed rape
survivors regarding their interactions with police and found that many
survivors felt the questions were distressing and some believed that the
questions they were asked implied that they deserved what happened to
them.49 Another study by Campbell and her colleagues showed that those
who experienced sexual harm perpetrated by a non-stranger whose cases
were not prosecuted and who experienced high levels of secondary
victimization had the highest post-traumatic stress disorder ("PTSD")
rates even when compared to those who did not report to the legal system
at all.5 0
Evidence suggests that police may not treat all survivors of sexual
harm the same, and much of this disparate treatment can be attributed to
the adherence of rape myths." Police culture, which is typically
masculine and authoritarian, generally facilitates the continued
acceptance of rape myths." Therefore, it is not surprising that for
46 See Washington, supra note 33, at 1274.

4? Laura M. Monroe et al., The Experience of Sexual Assault: Findingsfrom a Statewide
Needs Assessment, 20 J. INTERPERSONAL VIOLENCE 767, 770 (2005).

48 See Jan Jordan, Will Any Woman do? Police, Gender and Rape Victims, 25 POLICING:
AN INT'L J. POLICE STRATEGIES & MGMT. 319, 329-31 (2002).
av Rebecca Campbell, What Really Happened? A Validation Study of Rape Survivors'
Help-Seeking Experiences with the Legal and Medical Systems, 20 VIOLENCE & VICTIMS 55,
65-66 (2005).
50 Rebecca Campbell et al., Community Services for Rape Survivors: Enhancing Psycho-
logical Well-Being or Increasing Trauma? 67 J. CONSULTING & CLINICAL PSYCH. 847, 847
(1999).
5 See Alondra D. Garza & Cortney A. Franklin, The Effect of Rape Myth Endorsement
on Police Response to Sexual Assault Survivors, 27 VIOLENCE AGAINST WOMEN 552, 554-55
(2020); see also Molly Smith et al., Rape Myth Adherence Among Campus Law Enforcement
Officers, 43 CRIM. JUST. & BEHAV. 539, 540 (2016); Amy D. Page, Judging Women and De-
fining Crime: Police Officers'Attitudes Toward Women and Rape, 28 SOCIO. SPECTRUM 389,
394-97 (2008) [hereinafter Judging Women] (explaining that police officers with lower levels
of educational attainment were more accepting of rape myths whereas officers with higher
levels of educational attainment were less likely to endorse rape myths).
52 See Amy D. Page, Behind the Blue Line: Investigating Police Officers' Attitudes To-
ward Women and Rape 22-23, 108 (May 2004) (Ph.D. dissertation, University of Tennessee,
Knoxville).
survivors whose assault falls outside of what is considered a "real rape"

may not be taken seriously by the police. These include rapes committed
against unconscious women, cases when the person is harmed by
someone with whom they had a previous intimate relationship, and
instances in which the person harmed does not conform to traditional
gender roles. 53 One study found that police officers who ranked higher on
rape myth acceptance were less likely to pursue an investigation when the
situation did not fit the "real rape" paradigm.54 Furthermore, findings
suggest that specialized training on how to handle sexual assault survivors
does not influence officers' adherence to rape myths or the level of blame
they attribute to the person who was sexually harmed. 5
One of the most critical decisions that police make is whether to
unfound a case. Unfounding happens when a responding officer does not
believe the account of the person that was sexually harmed and, on that
basis, decides that it did not occur.56 Police officers may, however, make
the decision to unfound a case if they believe that a crime has occurred
but also believe that the likelihood of arrest and prosecution are low.5
"
When the person who caused the sexual harm was a stranger, the incident
was "more likely to be thoroughly investigated by police officers and less
likely to be considered unfounded." 5 8 Moreover, there is a significant
relationship between the presence of physical injury and the decision to
lay charges against an accused individual. 59
Investigations can also be traumatizing for those who report sexual
harm. Police investigators are often looking for gaps in a survivor's
account, parts of the account that do not make sense, and any motivations
there may be for giving a false report. 60 Thus, the ways in which these
53 DEP'T OF JUSTICE, IDENTIFYING AND PREVENTING GENDER BIAS IN LAW ENFORCEMENT

RESPONSE TO SEXUAL ASSAULT AND DOMESTIC VIOLENCE 7, https://perma.cc/RL2B-6GE3
(last visited Jan. 23, 2022).
54 See Judging Women, supra note 51, at 393, 396.
55 See Emma Sleath & Ray Bull, ComparingRape Victim and PerpetratorBlaming a
Police Officer Sample: Differences Between Police Officers With and Without Special Train-
ing, 39 CRIM. JUST. &BEHAV. 646, 661 (2012).
56 DONNA VANDIVER, ET AL., SEX CRIMES AND SEX OFFENDERS 78 (2017).
57 Spohn & Tellis, supra note 38, at 173.

58 Shaw et al., supra note 45, at 448.
" See Du Mont et al., supra note 31, at 478-79.
60 LORI HASKELL & MELANIE RANDALL, DEP'T OF JUST. CANADA, THE IMPACT OF TRAUMA
ON ADULT SEXUAL ASSAULT VICTIMS 8 (2019), https://perma.cc/ZVP3-ZYQ9. Namian writes:

Rape myths are especially resilient because they are particularly susceptible to being
re-constructed in different ways that serve the same purpose. To illustrate, current
statistics easily debunk the rape is rare myth, but it seems to live on through the
complementary belief that false rape accusations are common. So, as the myth that
husbands could not rape their wives lost all statutory support, variations on the false
questions are asked can leave people feeling blamed, rather than
supported and believed. Research supports the assertion that contact with
the police often leads to negative social interactions and which were
associated with an increase in symptoms of PTSD. 61
Rape myths may also impact prosecutors' charging decisions, which
are often based on legal factors, like the seriousness of the crime, the
offender's criminal record, and the strength of the evidence. 62 However,
several studies suggest that the rape myths and the stereotypes that
influence the decision-making of police officers also influence the
charging decisions of prosecutors. 63 As such, few rape cases are
prosecuted and without the participation of survivors, prosecuting acts of
sexual violence would be largely impossible. 64 Because so few cases
make it to trial, there is little available research regarding the experiences
of survivors as witnesses in the courtroom. However, some research has
examined how the demands of the trial process affects rape survivors,
focusing primarily on the emotional and psychological impact of the
practices of courtroom actors. 65 After experiencing questioning and
reporting to the police, a survivor may be fearful about retelling their story
during a criminal trial. 66 Many survivors are particularly concerned that
accusation myth stepped in to uphold the pervasive stereotype that married women
are theoretically incapable of being raped.
See, e.g., Morgan Namian, HypermasculinePolice and Vulnerable Victims: The Detrimental
Impact ofPolice Ideologies on the Rape Reporting Process, 40 WOMEN'S RTS. L. REP. 80, 99-
103 (2018); see generally Bonnie Stabile & Aubrey Grant, From Rape 'Myths ' to Roy Moore:
We Can't Continue to Blame Victims, THE HILL (Nov. 21, 2017, 5:00 PM), https://perma.cc
/L4SU-UWQX.
61 Sarah E. Ullman, Correlatesand Consequences ofAdult Sexual Assault Disclosure, 9
J. INTERPERSONAL VIOLENCE 554, 567 (1996).
62 Patricia A. Frazier & Beth Haney, Sexual Assault Cases in the Legal System: Police,
Prosecutor, and Victim Perspectives, 20 L. & HUM. BEHAV. 607, 609-11 (1996).
63 See Cassia Spohn & David Holleran, Prosecuting Sexual Assault: A Comparison of
ChargingDecisions in Sexual Assault Cases Involving Strangers, Acquaintances, and Inti-
mate Partners,18 JUST. Q. 651, 653 (2001).
64 See Cassia Spohn et al., ProsecutorialJustificationsfor Sexual Assault Case Rejection:
Guardingthe "Gateway to Justice ", 48 SOC. PROBS. 206, 220-21 (2001).
65 Konradi explains that:
[P]rosecutors may request significant psychological work from rape survivors to
sustain the state's case. Producing some emotions to appear victimized, suppressing
others to avoid the appearance of defensiveness or vindictiveness, and testifying
with a particular emphasis can all involve substituting another reality for one's own.
Denying their own reality is stressful for some rape survivors and leads them to feel
guilty and angry with themselves. When prosecutors provide little preparation or
primarily focus on rape survivors' self-presentations, they can unintentionally con-
tribute to the second assault on and re-victimization of rape survivors.
See AMANDA KONRADI, TAKING THE STAND: RAPE SURVIVORS AND THE PROSECUTION OF
RAPISTS 78-79 (2007)
66 See generally KONRADI, supra note 65.
they will endure a traumatic and humiliating trial and still not receive
justice. Oftentimes, trials are traumatic not only for the survivor but also
for those that support them.67 Moreover, when continuances are filed, plea
bargains are offered, or when reduced sentences are negotiated, people
who have been sexually harmed may feel revictimized.68
Given the severity of sexual harm, it is not surprising that survivors
not only want to be believed, but they also want the significance of their
experience to be recognized. 69 For many survivors, the need for formal
acknowledgement of harm does not translate to a desire for harsh
punishments. Survivors are not always interested in the punishment or
suffering of the person that harmed them. 70 Rather, most survivors of
sexual harm want to see the person that harmed them take responsibility
for their behavior and to see that person "attempt to put things right."7 1
Overall, research with survivors of sexual harm supports the notion that
they want "meaningful consequences" for the perpetrators of these
harms.72
Alexa's experience with testifying is similar to the findings
mentioned above. After the prosecutor decided to file criminal charges
against the man who raped her, Alexa had to recount the night of her rape
in great detail many times to the prosecutor and others. Although this is
often a part of the witness preparation process, Alexa felt even more
anxious and fearful about testifying during the trial. While her doubts
about testifying grew, she knew that the case would fall apart if she chose
not to participate. During the trial, prior to her testimony, Alexa wanted
to run away to avoid being in the courtroom with the man who raped her.
During cross-examination, Alexa had to describe her experience again
with excruciating detail in front of a courtroom and jury of strangers. Her
parents were included on the defense's witness list and were not allowed
in the courtroom. During defense questioning, she felt like her credibility
67 See Alissa Ackerman, The Second Rape, BEYOND FEAR (Aug. 12, 2020),
https://perma.cc/3BRU-JX83 ("Stacey provides a unique perspective of this process [the trial]
and also highlights how trauma due to the rape impacted Alexa's ability to recall certain events
around that time.").
68 Clare McGlynn, Feminism, Rape and the Searchfor Justice, 31 OXFORD J. L. STUD.
825, 834 (2011).
69 Clare McGylnn & Nicole Westmarland, Kaleidoscope Justice: Sexual Violence and
Victim-Survivors'Perceptionsof Justice, 28 SOC. & LEGAL STUD. 179, 188-89 (2019).
70 Id. at 187. In the authors' practice, they often work with individuals who have been
sexually harmed who are seeking an apology, the ability to ask questions, true accountability,
and to ensure the behavior does not happen again.
71 Shirley Jilich & Fiona Landon, Achieving Justice Outcomes: Participantsof Project
Restore 's Restorative Processes, in RESTORATIVE RESPONSES TO SEXUAL VIOLENCE 192, 202
(Estelle Zinsstag & Marie Keenan eds., 2017).
72 McGylnn & Westmarland, supra note 69, at 186.
was attacked and she was further traumatized. Overall, despite the
positive outcome of the trial, Alexa was left without a sense of closure or
justice that she hoped for.
While pre-conviction criminal legal processes can be traumatizing
and ineffective at meeting the needs of those that experience sexual harm,
post-conviction sex crimes policies can be equally problematic. In the
next section, the authors present a brief history of these policies and
document the research on why they are ineffective.
II. A BRIEF HISTORY OF POST-CONVICTION SEX CRIMES POLICIES
Modern day sex crimes policies typically refer to post-conviction

polices that were created during the early to mid-1990s after a series of
high profile, gruesome offenses were committed against young children
by strangers. 73 Thus, while these cases constitute only a small fraction of
all sex crimes cases, they prompted states and the federal government to
enact a new era of laws designed to keep children safe from people who
sexually offend. 74 There was a common belief that remains unsupported
by research, but is nonetheless cited by lawmakers and judges, that rates
of recidivism among people who sexually offend are "frightening and
high." 75 In May 1989, Earl Shriner, a man from Tacoma, Washington who
73 Karen J. Terry & Alissa R. Ackerman, A BriefHistory ofMajor Sex Offender Laws, in
SEX OFFENDER LAWS: FAILED POLICIES, NEW DIRECTIONS 50, 55 (Richard G. Wright ed.,
Springer Publishing Company 2d ed. 2015) (2009).
74 See id. at 55-58. Several cases spurred lawmakers to enact sweeping legislation target-
ing individuals who had committed sexual offenses. This was in part because of a moral panic
over a few highly publicized cases. Public outcry and fear prompted lawmakers to enact leg-
islation aimed at reducing sexual harm. There is a cyclical nature to sex crimes legislation
dating back to at least the 1930s and 40s. For example, the case of Albert Fish, a man who
claimed to have abused over 400 children, sparked a change in policing practices and new
"habitual sexual offender" laws. See generally Juliane Cunha, Albert Fish, Pedophile andSe-
rial Killer with Over 400 Child Victims, CASO CRIMINAL (Nov. 10, 2021), https://perma.cc
/83HN-VWLV; see also Lisa Marie Kruse, Sex offenders, Sexuality, and Social Control: A
Case Study in the Social Construction of a Social Problem 54 (July 13, 2017) (Master's thesis)
(on file with the Eastern Michigan University Digital Commons). In 1950, Paul Tappan wrote
about the problematic nature of sex crimes legislation and fallacies about people who commit
sexual offenses. His report holds true today, despite public paranoia and moral panic on this
topic. See PAUL W. TAPPAN, THE HABITUAL SEX OFFENDER (1950).
?5 Ira Mark Ellman & Tara Ellman, "Frighteningand High": The Supreme Court's Cru-
cial Mistake About Sex Crime Statistics, 30 CONST. COMMENT 495 (2015). Multiple court
cases, including McKune v. Lile, 536 U.S. 24, 33 (2002) and Smith v. Doe, 538 U.S. 84, 93
(2003) cite high rates of recidivism among people who commit sexually offences. Similarly,
lawmakers are on the record citing these statistics. For example, in 1996, U.S. Senator Kay
Bailey Hutchison (R-TX) spoke on the senate floor and stated:
We do know several unpleasant facts about sexual predators who prey on chil-
dren .... The repeat crime rate for sex offenders is estimated to be as much as ten
was known for prior violent assaults, sexually assaulted and mutilated the
genitals of a seven-year-old boy. 76 Later that year, another man from
Washington, Westley Allan Dodd, raped and murdered three boys.7 7
These cases were the catalyst for the Washington State Community
Protection Act of 1990, which offered various ways to ensure community
safety. 78 While Washington state lawmakers were focusing their efforts
on state policy, another case prompted the implementation of federal
legislation.
In 1989, an 11-year-old boy named Jacob Wetterling was kidnapped
in St. Joseph, Minnesota and his body was not found until 2016, 27 years
later. 79 After his kidnapping, Jacob's mother, Patty Wetterling, advocated
for efforts to create and implement registration policies, both in
Minnesota and on the federal level. 80 This ultimately led to the passage of
the Jacob Wetterling Crimes Against Children and Sexually Violent
times higher than the recidivism rate of other criminals. Mr. President, we know that
more than 40 percent of convicted sex offenders will repeat their crimes.
Amber Hagerman Child ProtectionAct of 1996: Hearing on 58638, Before the Comm. On
ForeignRels., 104th Cong. (1996) (statement of Kay Bailey Hutchison). Statements that sug-
gest that people who commit sex offenses have high rates of recidivism appear to have
stemmed from an article in Psychology Today, a mass market magazine. The article states that
"nearly 80% of people who commit sexual offenses who remain untreated will go on to
reoffend." Robert E. Freeman-Longo & R. Wall, Changinga Lifetime of Sexual Crime, PSYCH.
TODAY, Mar. 1986, at 58.
76 See Terry & Ackerman, supranote 73, at 55; Associated Press, Man Gets 131 1/2-Year
Term for Sexually MutilatingBoy, N.Y. TIMES (Mar. 27, 1990), https://perma.cc/934M-84UD.
77 See Terry & Ackerman, supra note 73, at 55; Timothy Egan, Illusions Are Also Left
Dead as Child-Killer Awaits Noose, N.Y. TIMES, (Dec. 29, 1992), https://perma.cc/FXX5-
9YMT.
78 See Terry & Ackerman, supranote 73, at 55. While the Act is mostly known for allow-
ing for the civil commitment of "sexually violent predators," it also increased sentencing
lengths for all sexual offenses, mandated registration with law enforcement upon release from
incarceration, authorized law enforcement to notify, on a need-to-know basis that someone on
the registry was living in nearby, and required treatment for people who sexually offend and
compensation for those who have been sexually harmed. Norm Maleng, The Community Pro-
tection Act and the Sexually Violent PredatorStatute, 15 U. PUGET SOUND L. REv. 821, 822
(1992); Washington State's law, RCW 71.09-Sexually Violent Predators, also known as the
Community Protection Act of 1990, included 14 different provisions to protect Washingtoni-
ans from the likes of Earl Shriner and Westley Alan Dodd. Through this Act, Washington
State became the first in the nation to require community notification. WASHINGTON STATE'S
COMMUNITY NOTIFICATION LAW: 15 YEARS OF CHANGE, WASH. ST. INST. PUB. POL'Y (2006),
https://perma.cc/P9UW-L2G4.
79 About Jacob Wetterling Resource Center, JACOB WETTERLING RESOURCE CTR., ZERO
ABUSE PROJECT, https://perma.cc/HF2U-JAUQ (last visited Jan. 23, 2022).
80 Richard G. Wright, An Interview with Patty Wetterling, in SEX OFFENDER LAWS: FAILED
POLICIES, NEW DIRECTIONS, supra note 73, 69-77.
Offender Registration Act in 1994, which required every state to create

police registries for all people convicted of sexual offenses.81
That same year, a seven-year-old girl, Megan Kanka, was lured from
her home by a man with two previous convictions for sex crimes against
children. He subsequently raped and murdered her. 82 Megan's parents
believed that if they had known the man was living across the street from
them, they could have better protected their daughter. 83 They advocated
for a community notification statute that would require law enforcement
agencies to notify the public about people with a sex offense conviction
living in the community. 84 Less than three months after the murder, the
state of New Jersey passed "Megan's Law." 85
In 1996, the Jacob Wetterling Act was amended to include a
community notification requirement which required states to enact both
registration and community notification policies. 86 Federal guidelines
provided states with the ability to implement these laws in ways each state
saw fit. 87 For example, states could create their own procedures for
everything from how they determined risk to who would be subject to
public notification. 88 In the early days of public notification, community
members could visit their local police precinct and request a compact disk
that included everyone currently on the public registry. 89 However, by
2003 all states, U.S. territories, and tribal jurisdictions had their own
internet registries. With states having broad latitude to decide what types
of information to include on their registry sites and little oversight from
81 See Jacob Wetterling Crimes Against Children and Sexually Violent Offender Regis-
tration Act, 42 U.S.C. § 14071 (1994).
82 Terry & Ackerman, supra note 73, at 50-65.
83 OurMission, MEGAN NICOLE KANKA FOUND., INC., https://perma.cc/EY7D-NH79 (last
visited Jan. 23, 2022).
84 Id.
85 Megan's Law, N.J. Stat. Ann. §§ 2C:7-1 to 7-11 (West 1999); see Megan 's Law, DEP'T
OF L. & PUB. SAFETY OFF. OF THE ATT'Y GEN., https://perma.cc/HTV6-7VXG (last visited Jan.
23, 2022).
86 Legislative History of FederalSex Offender Registration and Notification, U.S. DEP'T
OF JUST., OFF. OF SEX OFFENDER SENT'G, MONITORING, APPREHENDING, REGISTERING,
&
TRACKING, https://perma.cc/F888-SKZA (last visited Jan. 23, 2022).

87 Alissa R. Ackerman et al., Who Are the People in Your Neighborhood?A Descriptive
Analysis of Individuals on Public Sex Offender Registries, 34 INT'L J. L. AND PSYCH., 149,
149-59 (2011) [hereinafter Who Are the People in Your Neighborhood?]; Tracking Sex Of-
fenders: FederalLaw, Resources Have Led to MarkedImprovement of State Registries, But
More Work Is Needed, U.S. DEP'T OF JUST., NAT'L INST. OF JUST. (Nov. 13, 2020),
https://perma.cc/SAX7-RTG7; Terry & Ackerman, supra note 73, at 50-65.
88 Terry & Ackerman, supra note 73, at 50-65.
89 RICHARD G. ZEVITZ & MARY ANN FARKAS, NAT'L INST. OF
JUST., U.S. DEP'T OF JUST.,
SEX OFFENDER COMMUNITY NOTIFICATION: ASSESSING THE IMPACT IN WISCONSIN 1, (2000).
the federal government, there was a lack of uniformity across registry

sites.
In an effort to standardize information across individual state
registries and because of expanded interest in creating a national public
sex crimes registry, the federal government passed the Adam Walsh Child
Protection and Safety Act (AWA). 90 This broad, sweeping legislation
created an offense-based classification system, mandated that all people
with sex offense convictions be listed on state and national registries,
expanded requirements for who must register and for how long, and
required retroactive registration of certain individuals. 91 Little research
has been conducted to assess the content and makeup of these registries. 92
However, those studies that have been conducted reveal inconsistencies
between published statistics and actual registry content. 93 A 2011 study
was the first of its kind to look at the content and using data from the
majority of state registries. 94 The study found many inconsistencies both
between the published count of people required to register and those who
were actually publicly registered between individual states. For example,
some states include individuals who are deceased, deported, incarcerated,
or otherwise institutionalized, or living out of state, in their state counts.
While some states publicly register every person convicted of a sexual
offense, others only register those who are considered to be at a moderate
to high risk of reoffending. 95 A series of studies that stemmed from this
original 2011 study found similar results. 96 By 2018, the United States
90 See generally Adam Walsh Child Protection and Safety Act of 2006, 34 U.S.C.
§§ 20901, 20911 (2006).
91 See id., §§ 20901-20931.
92 Who Are the People in Your Neighborhood?, supra note 87, at 149.
93 Alissa R. Ackerman et al., How Many Sex Offenders Really Live Among Us? Adjusted
Counts and Population Rates in Five U.S. States, 35 J. CRIME & JUST., Nov. 2012, at 1, 1
[hereinafter How Many Sex Offenders Really Live Among Us?]; Andrew J. Harris et al., Reg-
istered Sex Offenders in the United States: Behind the Numbers, 60 CRIME & DELINQ. 3, 3
(2014).
9 Who Are the People in Your Neighborhood?, supra note 87, at 151. Ackerman and her
colleagues worked with a computer programmer to build a program that would "scrape" all of
the publicly available registry data from each state website. They compared the raw count of
their database to the most recent count provided by the National Center for Missing and Ex-
ploited Children ("NCMEC") and found that their count represented 66% of the NCMEC
count.
5 Who Are the People in Your Neighborhood?, supra note 87, at 155. The study also
found differences in the types of information provided on registries.
96 See How Many Sex Offenders Really Live Among Us?, supra note 93, at 8; Harris et
al., supra note 93, at 11-21; see also Alissa R. Ackerman, National Estimates of Registered
Sex Offenders in the United States. Is Double Counting a Problem?, 40 AM. J. CRIM. JUST. 75,
80, 83-84 (2014).
was approaching one million people on public registries. 97 These people

and their families are subject to a complex web of ever increasing local,
state, and federal policies that make living productive and healthy lives
almost impossible. 98 For example, studies find that local and state
residence restrictions relegate people into homelessness. 9 9 Other research
findings suggest that modern sex crimes policies lead to non-sexual
recidivism.100 Perhaps most importantly, studies consistently report that
modern sex crimes policies are ineffective at actually reducing the
number of sex crimes that occur. 10 This is in part because these policies
lead to increased stress and fear among those forced to register, but also
9? Andrew J. Harris et al., States' SORNA Implementation Journeys: Lessons Learned

and Policy Implications, 23 NEW CRIM. L. REV. 315, 317 (2020).
98 See Danielle J. S. Bailey, A Life of Grief An Explorationof DisenfranchisedGriefin
Sex Offender Significant Others, 43 AM. J. CRIM. JUST. 64 passim (2018); see also Danielle J.
S. Bailey & Lisa L. Sample, An Examination of a Cycle of Coping with StrainAmong Regis-
tered Citizens 'Families, 30 CRIM. JUST. STUD. 158 passim (2017).
99 See Kelly M. Socia et al., "BrothersUnder the Bridge": FactorsInfluencing the Tran-
sience ofRegistered Sex Offenders in Florida,27 SEXUAL ABUSE: J. RSCH. & TREATMENT 559,
560 (2015); see also Jill S. Levenson et al., Where for Art Thou? TransientSex Offenders and
Residence Restrictions, 26 CRIM. JUST. POL'Y REV. 319, 321 (2015); see also Jill S. Levenson,
Hidden Challenges: Sex Offenders Legislatedinto Homelessness, 18 J. SOC. WORK 348, 348-
63 (2018); see also Gina Puls, No Place to Call Home: Rethinking Residency Restrictionsfor
Sex Offenders, 36 B.C.J.L. & SOC. JUST. 319, 319 (2016). Residence restrictions prohibit
where people with sex offense convictions can live in relation to schools, parks, and daycare
centers. These restrictions range from 1000 feet to over 2500 feet. This means that many places
that would otherwise be available for people with sex offense convictions to live become un-
available. Some states have created "tent cities" for people with sex offense convictions be-
cause there are no other available options for them. See generally UNTOUCHABLE (Blue Lawn
Productions 2016) (documenting the homeless encampment in Miami-Dade County, Florida).
100 Though not generalizable, the Ackerman and Sacks study found that the strain of being
on the registry impacted self-reported non-sexual recidivism. Individuals with higher levels of
anger and strain were more likely to report drug offenses, property offenses, and other violent
offenses. This is consistent with General Strain Theory, which explains that people who are
not able to cope with life stresses and strains may be more likely to act out in criminal and
delinquent ways. Alissa R. Ackerman & Meghan Sacks, Can General Strain Theory Be Used
to ExplainRecidivism Among RegisteredSex Offenders?, 40 J. CRIM. JUST. 187, 188-91 (2012)
(noting that the general criminological literature suggests that successful reentry into the com-
munity requires stable housing, employment, and pro-social relationships); cf ADIAH PRICE-
TUCKER ET AL., HARV. INST. OF POL. CRIM. JUST. POL'Y GRP., SUCCESSFUL REENTRY: A
COMMUNITY-LEVEL ANALYSIS 30 (2019) (highlighting that current sex crimes policies make
maintaining stable housing, employment, and pro-social relationships very difficult for people
to attain).
101 See Alissa R. Ackerman et al., Legislation Targeting Sex Offenders: Are Recent Poli-
cies Effective in Reducing Rape?, 29 JUST. Q. 858, 858-87 (2012); cf J. J. Prescott & Jonah
E. Rockoff, Do Sex Offender Registration andNotification Laws Affect Criminal Behavior?,
54 J. L. & ECON. 161, 161 (2011) (explaining that notification may increase recidivism); see
Bob Edward Visquez et al., The Influence ofSex Offender Registration andNotification Laws
in the United States: A Time-Series Analysis, 54 CRIME & DELINQ. 175, 188 (2008).
because they create unnecessary obstacles (e.g., impeding employment,

housing, and prosocial relationships) that people and their families must
endure. 12
Some proponents of these policies have argued that they were
enacted to bring justice to individuals who have experienced sexual
harm10 3 -that somehow these policies will help survivors to heal. Some
lawmakers even propose or support legislation targeting people who
commit sex crimes in part because of a specific, highly publicized sexual
offense.104 Yet, little is known about how people who have experienced
sexual harm think about current policy and practice, partially due to the
fact that there is little available research investigating survivor
perspectives. 105 One study that compared people who have experienced
sexual victimization with those who had not been sexually victimized
found that those who had experienced victimization were more likely to
express more positive attitudes about people who commit sex crimes, and
were less supportive of registration and notification policies than those
who have not experienced sexual harm. 106
As with most criminal legal system organizations, institutions, and
policies, sex crimes registries disproportionately impact people of color,
with Black men more likely to be impacted by current sex crimes
policies. 10 7 This is of particular importance because some research
suggests that White people commit more sex crimes than people of other
See Alissa R. Ackerman et al., The Experiences of Registered Sex Offenders with In-
102
ternet Offender Registries in Three States, 52 J. OFFENDER REHAB. 29, 29-45 (2013); see also
Keri B. Burchfield & William Mingus, Not in My Neighborhood:Assessing Registered Sex
Offenders' Experiences with Local Social Capital and Social Control, 35 CRIM. JUST.
&
BEHAV. 356, 356-74 (2008); see also Jill S. Levenson & Leo P. Cotter, The Effect ofMegan's
Law on Sex Offender Reintegration, 21 J. CONTEMP. CRIM. JUST. 49, 49-66 (2005); see also
Jill S. Levenson & David A. D'Amora, Social PoliciesDesigned to PreventSexual Violence:
The Emperor'sNew Clothes?, 18 CRIM. JUST. POL'Y. REv. 168, 168-99 (2007); see also Jill S.
Levenson et al., Meghan's Law and its Impact on Community Re-Entry for Sex Offenders, 25
BEHAV. Sci. & L. 587, 591 (2007); see also Cynthia Calkins Mercado et al., The Impact of
Specialized Sex Offender Legislation on Community Reentry, 20 SEXUAL ABUSE: J. RSCH.
&
TREATMENT 188, 188 (2008); see also Richard Tewksbury, Collateral Consequence of Sex
Offender Registration, 21 J. CONTEMP. CRIM. JUST. 67, 67-81 (2005).
103 See generallyMichael Wenzel & Ines Thielmann, Why We Punish in the Name ofJus-
tice: JustDesert Versus Value Restoration and the Role of Social Identity, 19 SOc. JUST. RScH.
450 (2006).
104 Michelle Meloy et al., The Sponsors of Sex Offender Bills Speak up: Policy Makers'
Perceptions of Sex Offenders, Sex Crimes, and Sex Offender Legislation, 40 CRIM. JUST.
&
BEHAV. 438, 442-43 (2013).

105 Suzanne Spoo et al., Victims'Attitudes Toward Sex Offenders andSex Offender Legis-
lation, 62 INT'L J. OFFENDER THERAPY & COMPAR. CRIMINOLOGY 3385, 3388 (2018).
106 Id. at 3395.
107 Alissa R. Ackerman & Meghan Sacks, DisproportionateMinority Presence on U.S.
Sex Offender Registries, JUST. POL'Y J., Fall 2018, at 1, 5, https://perma.cc/HZH6-LNQH.

races. 108 A 2018 study by Ackerman and Sacks that examined the number
and rate of minorities on U.S. registries found that 72% of people who are
forced to register nationally were White, while fewer than 27% of
individuals were Black. 109 Jurisdictions in the southern U.S. had the
highest percentage of Black people on their registries."' Black registered
citizens comprised less than 5% of people forced to register in twelve
jurisdictions, but in each of those jurisdictions the percentage of Black
people forced to register was still higher than the percentage of Black
people in the state population."
Simple percentages do not provide enough information to explain the
extent of disproportionate minority presence, so per capita rates are used
to paint a more accurate picture. In every jurisdiction but one, Black
people had a higher rate of inclusion on registries. 2 The research is clear
that post-conviction sex crimes policies place undue burdens on people
forced to register, making reintegration into the community extremely
difficult. This is exponentially harder for people of color, specifically
because of the disparate impacts across criminal legal processes.113
Post-conviction sex crimes policies are typically used in a "one size
fits all" fashion, which improperly consider all offenses and the people
who commit them as if they are dangerous and will inevitably reoffend.
This causes the public to erroneously conflate sexual offenses committed
against children by strangers with all other forms of sexual offending.11 4
While these kinds of crimes do occur, they are rare.11 5 Perpetuating the
myth that we must protect kids from strangers makes it more difficult to
108 See JAN M. CHAIKEN & LAURIE ROBINSON, Foreword to LAWRENCE

A. GREENFELD,
U.S. DEP'T. OF JUST., OFF. OF JUST. PROGRAMS, BUREAU OF JUST. STAT., NCJ 163392, SEX
OFFENSES AND OFFENDERS: AN ANALYSIS OF DATA ON RAPE AND SEXUAL ASSAULT (1997),
https://perma.cc/A9RQ-V7CY.
109 Ackerman & Sacks, supra note 107, at 7-8 (explaining that while the raw count of
people on the registry implies that the majority are White, Black individuals are dispropor-
tionately impacted). QUICKFACTS UNITED STATES, U.S. CENSUS BUREAU, tbl. (July 1, 2019),
https://perma.cc/9ZQW-WFYZ (according to the U.S. Census Bureau, Black individuals
made up approximately 13.4% of the population in 2019).
110 Ackerman & Sacks, supra note 107, at 14.
"1 Id. at 8.
112 Id.
113 Id.
114 See Lisa L. Sample & Timothy M. Bray, Are Sex Offenders Different?:An Examination
of Rearrest Patterns, 17 CRIM. JUST. POL'Y REV. 83, 84-85 (2006) [hereinafter Are Sex Of-
fenders Different?]; see also James F. Quinn et al., Societal Reaction to Sex Offenders: A
Review of the Origins and Results of the Myths Surrounding Their Crimes and Treatment
Amenability, 25 DEVIANT BEHAV. 215, 218 (2004).
115 HOWARD N. SNYDER, U.S. DEP'T. OF JUST., NAT'L CTR. FOR JUV. JUST., NCJ 182990,
SEXUAL ASSAULT OF YOUNG CHILDREN AS REPORTED TO LAW ENFORCEMENT: VICTIM,
INCIDENT, AND OFFENDER CHARACTERISTICS 13 (2000).
prevent the types of sex crimes that actually do happen on a regular basis,
namely crimes between people known to each other: family members,
acquaintances, teachers, colleagues, and friends.116 Most importantly,
upholding the stranger danger myth denies access to and participation in
important conversations and educational opportunities regarding ways to
effectively prevent sexual harm.
Another false assumption about registries is that they include all
people who have sexually offended and will therefore keep society safe.
With almost a million people on registries, this is easy to assume.117 It is
important to note that most new sexual offenses are committed by people
who are not on registries.118 First, this is because most people who are
convicted of a sexual offense do not reoffend. 119 Studies consistently find
that people who have committed a sexual offense, especially those who
have been through treatment, typically do not reoffend.120 A recent meta-
analysis of treatment programs found that they reduced recidivism by
See Richard R. Zevitz, Sex Offender Community Notification: Its Role in Recidivism
116
and Offender Reintegration, 19 CRIM. JUST. STUD. 193, 205 (2006).
117 NAT'L CTR. FOR MISSING & EXPLOITED CHILD., Map ofRegistered Sex Offenders in the
United States, (Dec. 4, 2018), https://perma.cc/TAT5-Y2FX. Publishing of these statistics no

longer occurs publicly by this organization
118 See PATRICK A. LANGAN ET AL., U.S. DEP'T. OF JUST., OFF. OF JUST. PROGRAMS,
BUREAU OF JUST. STAT., NCJ 198281, RECIDIVISM OF SEX OFFENDERS RELEASED FROM PRISON
IN 1994 24 (2003).
119 Alissa R. Ackerman & Marshall Burns, Bad Data: How Government Agencies Distort
Statistics on Sex-Crime Recidivism, 13 JUST. POL'Y J. 1, 6 (2016); ALLEN J. BECK & BERNARD
E. SHIPLEY, U.S. DEP'T. OF JUST., OFF. OF JUST. PROGRAMS, BUREAU OF JUST. STAT.,
RECIDIVISM OF PRISONERS RELEASED IN 1983 6 (1989) (finding that only 7.7% of people who
committed forcible commit the same offense within three years of release); R. Karl Hanson
&
Kelly E. Morton-Bourgon, The Characteristicsof PersistentSexual Offenders: A Meta-Anal-

ysis ofRecidivism Studies, 73 J. CONSULTING & CLINICAL PSYCH. 1154, 1158 (2005) (finding
that 13.7% of individuals with a previous sex crime conviction were convicted of a new sex
crime); ANDREW J. R. HARRIS & R. KARL HANSON, PUB. SAFETY & EMERGENCY
PREPAREDNESS CANADA, SEX OFFENDER RECIDIVISM: A SIMPLE QUESTION 2004-03 11 (2004)
(finding that both individuals who had sexually harmed adult and children had low levels of
recidivism. Overall recidivism rates were 14%, 20%, and 24% after 5, 10, and 15 years, re-
spectively. Individuals who had been convicted of incest had the lowest recidivism rates which
were 6%, 9%, and 13% after 5, 10, and 15 years, respectively); Lisa L. Sample & Timothy M.
Bray, Are Sex Offenders Dangerous?, 3 CRIMINOLOGY & PUB. POL'Y 59, 73 (2003) (finding
that only 6.5% of individuals who were convicted of a sex crime were rearrested for a new sex
crime within 5 years) [hereinafter Are Sex Offenders Dangerous?];see PATRICK A. LANGAN,
ET AL., U.S. DEP'T. OF JUST., OFF. OF JUST. PROGRAMS, BUREAU OF JUST. STAT., NCJ 198281,
RECIDIVISM OF SEX OFFENDERS RELEASED FROM PRISON IN 1994 24 (2003); see Are Sex Of-
fenders Different?, supra note 114, at 83.
120 Hanson & Morton-Bourgon, supra note 119, at 1159; HARRIS & HANSON, supra note
119; LANGAN ET AL., supra note 119; Are Sex Offenders Dangerous?,supra note 119, at 64,
68; Are Sex Offenders Different?, supra note 114, at 86.
22%.121 The second reason for this erroneous assumption lies in reporting
patterns and pre-conviction criminal legal processing which funnels out
most known offenses. As mentioned, for every 1,000 rapes committed,
only 25 people will be convicted. 122 This translates into similar numbers
for inclusion on registries. As such, only a small fraction of people
responsible for inflicting sexual harm will ever end up on a registry.
Current post-conviction sex crimes policies and practices were
enacted after several highly publicized cases where young, White children
were abducted, sexually violated, and murdered by strangers. 123 Despite
the literature that clearly indicates that the vast majority of people who
have sexually harmed will not reoffend, these policies have burgeoned
into a vast web of local, state, and federal policies that deny people who
have been convicted of sexual offenses the ability to live productive lives
in the community. Research has shown that these policies do not reduce
sexual violence, that they create more risk than they prevent, that they
disproportionately impact people of color, and that people who
experience sexual violence are not proponents of these policies. In
addition, they only include a small fraction of people responsible for
committing acts of sexual harm. Still, post-conviction sex crimes policies
remain a popular law enforcement tool.
Criminal legal processes that occur prior to conviction and post-
conviction policies for people who have been convicted of sexual offenses
both contribute to additional harm for survivors, their families, and
broader communities. They often do not meet the justice needs of any
person impacted by sexual harm, and have no impact on decreasing rates
of sexual harm. One reason for this is that meeting the actual needs of all
parties requires individualized or case-by-case practices and procedures
that large systems are not amenable to. Another reason is a lack of
understanding about the many reasons why sexually harmful or violent
behavior occurs in the first place. Section III explains the reasons why
sexual harm occurs.
III. THE ETIOLOGY OF SEXUAL HARM
There is no single variable that explains why a person commits acts

of sexual harm. It is usually the result of a combination of psychological,
developmental, and sometimes biological factors, including an inability
to cope with life stressors (e.g., the loss of employment or marital
problems), isolation and loneliness, lack of empathy, few or weak
121 Bitna Kim et al., Sex Offender Recidivism Revisited: Review of Recent Meta-analyses
on the Effects of Sex Offender Treatment, 17 TRAUMA, VIOLENCE, & ABUSE 105, 109 (2016).
122 The CriminalJustice System: Statistics, RAINN, supranote 35.
123 Terry & Ackerman, supra note 73, at 64.
attachments to others, limited social skills, and cognitive distortions

("CDs").12 4 CDs are a type of automatic thought process that develops
and aids in minimizing the seriousness of an offense. 125
Regardless of the underlying causes of sexual harm, people who
perpetrate it make the decision to do so. Sometimes this involves a series
of decisions and planning over a long period of time. 126 Other times, the
opportunity arises and the decision is made quickly. 121 Often people who
sexually harm are unaware of the series of decisions that lead to their
behavior, but justify it through the use of CDs. 128 CDs allow a person to
minimize or deny the harm done to victims, to minimize the violence used
during an offense, to deny responsibility for an offense, and to deny
planning it. 129 There are several CDs that are common among people that
commit acts of childhood sexual abuse, including the belief that the
abusive behavior is teaching the child about relationships, that the child
enjoys it, that the behavior is not harmful, and the belief that the act of
abuse is due to mutual interest. 130
Individuals who commit rape and sexual assault also experience
CDs. However, CDs exhibited in these instances often reinforce male
superiority, negative views toward women, and adherence to rape
myths. 131 For example, during the 1970s, Susan Brownmiller published a
124 KAREN J. TERRY, SEXUAL OFFENSES AND OFFENDERS: THEORY, PRACTICE AND POLICY
72-73 (2d ed. 2013).
125 Tony Ward, Sexual Offenders' Cognitive Distortions as Implicit Theories, 5
AGGRESSION & VIOLENT BEHAV. 491, 502-03 (2000).
126 TERRY, supra note 124, at 71-73.
Id.
127
See Gene G. Abel et al., Complications, Consent, and Cognitions in Sex Between Chil-
128
dren and Adults, 7 INT'L J. L. & PSYCHIATRY 89 (1984) (highlighting a few of the common
cognitive distortions and "explanations" held by adults who have caused sexual harm to chil-
dren); see also Marvin B. Scott & Stanford M. Lyman, Paranoia,Homosexuality, & Game
Theory, 9 J. HEALTH & SOC. BEHAV. (SPECIAL ISSUE) 179 passim (1968); Gresham M. Sykes
& David Matza, Techniques of Neutralization:A Theory of Delinquency, 22 AM. SOCIO. REV.
664, 666-67 (1957).
129 See JUDAH OUDSHOORN ET AL., THE LITTLE BOOK OF RESTORATIVE JUSTICE FOR SEXUAL
ABUSE: HOPE THROUGH TRAUMA 28-29 (2015); see also Gresham M. Sykes & David Matza,
supra note 128, at 667-68.
130 Ward, supra note 125, at 493.
131 Ruth Mann & Clive Hollin, Self-reported Schemas in Sexual Offenders, 21 J. FORENSIC
PSYCHIATRY & PSYCH. 834, 846 (2010); Rebecca J. Milner & Stephen D. Webster, Identifying
Schemas in Child Molesters, Rapists, and Violent Offenders, 17 SEXUAL ABUSE: J. RSCH.
&
TREATMENT 425, 434 (2005); see Neil M. Malamuth & Lisa M. Brown, Sexually Aggressive
Men's Perceptions of Women's Communications: Testing Three Explanations, 67 J.
PERSONALITY & SOC. PSYCH. 699 (1994); see also Devon L. L. Polaschek & Theresa A. Gan-
non, The Implicit Theories ofRapists: What Convicted Offenders Tell Us, 16 SEXUAL ABUSE:
book that analyzed rape within cultural and political contexts. 132 She
asserted that acts of sexual harm, specifically the rape of adult women,
exemplified men's oppression of them, and that sexual assault was a
symptom of a patriarchal society that subjects women and reinforces male
supremacy and domination.133 Societal-level variables including social
norms that support rape, male superiority, and maintain women's
inferiority culminate in negative views toward women and adherence to
rape myths. 134 Men who rape are more likely to condone violence and
identify with a hypermasculine identity. 135 Most rapes are about power,
control, and opportunity-not sexual attraction or gratification. 136 In
essence, rape is often used as a means to control and dominate. 137
Like those who commit acts of childhood sexual abuse, men who
commit rape often experience feelings of worthlessness, isolation,
feelings of inadequacy, few or weak peer relationships, and difficulty
managing aggression. 138 In combination with psychological, societal, and
behavioral factors, childhood trauma and abuse can also play a significant
role in the etiology of harmful sexual behavior. 139 Childhood adversity
and trauma are often significant predictors of myriad difficulties in
J. RSCH. & TREATMENT 299, 310-13 (2004); Devon L. L. Polaschek & Tony Ward, The Im-
plicit Theories of Potential Rapists: What Our Questionnaires Tell Us, 7 AGGRESSION
&
VIOLENT BEHAV. 385, 392-99 (2002).
132 SUSAN BROWNMILLER, AGAINST OUR WILL 15-18 (1975).
133 Id.
134 Burt, supra note 41, at 229.
135 Laura S. Abrams, Ben Anderson-Nathe & Jemel Aguilar, Constructing Masculinities
in Juvenile Corrections, 11 MEN & MASCULINITIES 22, 26 (2008); Dominic J. Parrott & Amos
Zeichner, Effects of Hypermasculinity on PhysicalAggression Against Women, 4 PSYCH. MEN
& MASCULINITY 70 (2003); Angela P. Harris, Gender, Violence, Race, and Criminal Justice,
52 STAN. L. REv. 777, 785 (2000) (defining hypermasculine identity as an "exaggerated exhi-
bition of physical strength and personal aggression"); R.W. Connell, Masculinities and Glob-
alization, 1 MEN & MASCULINITIES 3 (1998); A. Nicholas Groth, Ann Wolbert Burgess,
&
Lynda Lytle Holmstrom, Rape: Power, Anger, and Sexuality, 134 AM. J. PSYCHIATRY 1239,
1240 (1977).
136 Groth, et al., supra note 135, at 1242.
137 Id. at 1240.
138 Gordon C. Nagayama Hall & Richard Hirschman, Toward a Theory ofSexualAggres-
sion: A Quadripartite Model, 59 J. CONSULTING & CLINICAL PSYCH. 662, 665 (1991); see W.
L. Marshall, The Role ofAttachments, Intimacy, and Loneliness in the Etiology and Mainte-
nance of Sexual Offending, 25 SEXUAL & RELATIONSHIP THERAPY 73, 76-77 (2010).
139 Ashley F. Jespersen, Martin L. Lalumiere & Michael C. Seto, SexualAbuse History
Among Adult Sex Offenders and Non-Sex Offenders: A Meta-Analysis, 33 CHILD ABUSE
&
NEGLECT 179, 188 (2009); Jill S. Levenson & Melissa D. Grady, The Influence of Childhood
Trauma on Sexual Violence and Sexual Deviance in Adulthood, 22 TRAUMATOLOGY 94, 101
(2016) [hereinafter Levenson & Grady, The Influence of Childhood Trauma on Sexual Vio-
lence and Sexual Deviance in Adulthood].
adulthood, including sexual harm. 140 In a large-scale study conducted in

partnership with the Centers for Disease Control ("CDC") and Kaiser
Permanente, researchers examined the relationship of adverse childhood
experiences ("ACEs") with health outcomes in adulthood. The study
found that over 25% of participants had two or more ACEs. 14 1 They found
that ACEs, including childhood abuse and neglect among others, were
linked to obesity, increased rates of heart attacks and strokes, higher rates
of cancer and chronic illnesses, increased risk of mental illnesses, higher
rates of substance use and misuse, and higher rates of suicide. 142
Researchers have also examined the relationship between childhood
adversity and criminal behavior. One study has found that incarcerated
people were more likely to have had experienced sexual and physical
abuse as a child than people who are not incarcerated. 143 Clearly, not all
people who experience childhood sexual abuse become adults that
perpetrate acts of sexual harm, but there is a nuanced link between the
two. More specifically, researchers have found that men who have
offended sexually have higher odds of having experienced childhood
sexual abuse, physical abuse, verbal abuse, and emotional abuse than men
who have not. 144 Similarly, researchers have found that almost half of men
who had sexually offended reported four or more ACEs. 145
There are multiple reasons why people sexually offend that range
from the inability to cope with life stressors, to cognitive distortions, poor
attachments to others, and childhood trauma. Criminal legal processes do
140 Vincent J. Felitti et al., Relationship of ChildhoodAbuse and HouseholdDysfunction

to Many of the Leading Causes of Death in Adults, 14 AM. J. PREVENTATIVE MED. 245 passim
(1998).
141 Id. at 251 tbl.3.
142 Id. at 251-54.
143 The study found:
Between 6% and 14%/ of male offenders and between 23%, and 37%s of female of-
fenders reported they had been physically or sexually abused before 18 .. . re-
view of 16 studies estimated that for the general adult population 500 to 8%, of males
and l2°/~ to 17%0 of females are abused as children.
CAROLINE WOLF HARLOW, U.S. DEP'T OF JUST., OFF. OF JUST. PROGRAMS, BUREAU OF JUST.
STAT., NCJ 172879, PRIOR ABUSE REPORTED BY INMATES AND PROBATIONERS 1 (1999).
144 Jill S. Levenson et al., Adverse Childhood Experiences in the Lives of Male Sex Of-
fenders: Implicationsfor Trauma-Informed Care 26 SEXUAL ABUSE: J. RSCH. & TREATMENT
1 passim (2014) [hereinafter Jill S. Levenson et al., Adverse Childhood Experiences in the
Lives of Male Sex Offenders]; Levenson & Grady, The Influence of Childhood Trauma on
Sexual Violence and Sexual Deviance in Adulthood, supra note 140, at 94-103; Jill S. Leven-
son & Kelly M. Socia, Adverse Childhood Experiences andArrest Patterns in a Sample of
Sexual Offenders, 31 J. INTERPERSONAL VIOLENCE 1 passim (2015); see Wesley G. Jennings
et al., An EmpiricalAssessment of the Overlap Between Sexual Victimization and Sex Offend-
ing, 58 INT'L J. OFFENDER THERAPY & COMP. CRIMINOLOGY 1466, 1475 (2014).
145 See Jill S. Levenson et al., Adverse Childhood Experiences in the Lives of Male Sex
Offenders, supra note 144, at 13.
little to address the underlying factors that lead to sexually harmful

behavior. Restorative justice requires that these underlying factors are
addressed. It helps individuals who have perpetrated sexual harm to better
understand what led to them causing harm in the first place and taking the
necessary steps to be fully accountable for their behavior. 146 The
remainder of this paper focuses on restorative justice, how it can be used
to effectively address acts of sexual harm, and culminates with hopes for
a restorative future.
IV. WHAT IS RESTORATIVE JUSTICE?

Restorative justice is a framework for addressing all forms of harm,
from simple disagreements to violent crimes. 147 It focuses on the harms
caused rather than violations of specific criminal laws or statutes. 148 This
is because restorative justice honors that everyone is interconnected from
communities to the environment; the main focus is always on healing and
doing no further harm. Restorative frameworks offer a myriad of
opportunities for acknowledgement, accountability, and harm-
reduction. 149 These approaches focus on the ripple effects of harm. When
someone is hurt, the hurt is also felt by partners, families, friends, and
communities. 150 Restorative approaches are also concerned with the
harms and consequences felt by those close to people who have
perpetrated harm.151 Restorative practices must remain multi-faceted
because the needs of different participants can be in opposition to one
another. As such, the approach is participant-driven and survivor-
centered.
146 Cf HOWARD ZEHR, THE LITTLE BOOK OF RESTORATIVE JUSTICE: REVISED AND
REVISITED 42 (2d ed. 2015) (noting that people who have harmed have "an obligation to ad-
dress the causes of their behavior, but they usually cannot do this alone"). Based on the au-
thors' experience, the pre-education process helps people who have harmed to develop an
understanding of the causes of their behavior and the language to talk about those factors in
an accountable and responsible way.
147 See id. Criminal legal processes are concerned with whether a person is guilty of vio-
lating a specific criminal statute. This language is not utilized in restorative spaces, as the
focus is on the impact of the harm caused. For example, in a criminal legal process someone
could be convicted of perpetrating rape if the state could prove beyond a reasonable doubt that
a rape had occurred. The adversarial process might focus on the minutiae of the case. In re-
storative processes the focus remains on the impact of the behavior and the breakdown of
relationships. Restorative justice seeks to repair harm, while criminal legal processes seek to
affirm guilt.
148 HOWARD ZEHR & ALI GOHAR, THE LITTLE BOOK OF RESTORATIVE JUSTICE 33-36
(2003).
149 ZEHR & GOHAR, supra note 148 at 83-85.
150 ZEHR & GOHAR, supra note 148 at 18.
151 This is particularly true for people who have committed acts of sexual harm. See gen-
erally Bailey, supra note 98.
Whenever harm occurs a relationship is broken. This might not be

the breakdown of a relationship between two people, it could be the loss
of relationship with oneself or the inability to connect in relationship with
others. 15' The importance of relationships and healing were centered in
the restoration and prevention of harm in historical and ancient traditions,
from North American indigenous people, to the Maori in New Zealand,
across the African continent, and among Ancient Hebrews. 153 These
traditions were adapted to form the basis of modern restorative justice
practices, with little credit to historical indigenous and historical
practice.
Restorative justice was popularized in the west in the 1970s.155
Several countries, including Australia, England, Canada, New Zealand,
and the U.S., use some form of restorative justice. 156 In the U.S. there was
a marked shift toward rehabilitative goals around the 1970s, though
rehabilitative and restorative goals are far more popular within the
juvenile justice system and with first-time or non-violent offenses.15 7
Restorative justice within the formal adult criminal legal system is not
popular in the U.S., but programs both pre-charge and post-conviction
152 See generallyBESSEL VAN DER KOLK, THE BODY KEEPS THE SCORE: BRAIN, MIND, AND
BODY IN THE HEALING OF TRAUMA (1st ed. 2014).

153 ZEHR & GOHAR, supra note 148 at 2, 3, 10, 17, 45; Julena Jumbe Gabagambi, A Com-
parative Analysis of Restorative Justice Practicesin Africa, N.Y.U. HAUSER GLOBAL LAW
SCHOOL PROGRAM (2018), https://perma.cc/M3AW-C7DP (discussing the use of restorative
practices in various African countries and arguing that restorative justice was practiced on the
African continent long before the colonialists arrived and that it should be revived across the
continent); Fainos Mangena, Restorative Justice'sDeep Roots in Africa, 34 S. AFR. J. PHIL. 1,
12 (2015); ALLAN MACRAE & HOWARD ZEHR, THE LITTLE BOOK OF FAMILY GROUP
CONFERENCES, NEW ZEALAND STYLE (2000) [hereinafter MACRAE & ZEHR]. The principles of
restorative justice are deeply rooted in spiritual and indigenous practices. MACRAE & ZEHR,
id, discuss how the Family Group Conference model became the norm in New Zealand. Maori
youth were disproportionally impacted by the imposition of Western models of retributive
justice. Maori leaders noted that in their tradition, when a harm occurred the whole community
became involved with the intention of repair. Their voices were heard and in the late 1980s
New Zealand moved toward utilized Family Group Conferencing. Finally, the great Jewish
philosopher and rabbi known as Maimonides (1138-1204) wrote extensively about the Jewish
process of Teshuva. See also Alissa Ackerman & Guila Benchimol, Restorative Justice and
Teshuva Following Sexual Misconduct, JEWISH PHILANTHROPY (Sept. 12, 2018),
https://perma.cc/K5VC-GPSZ.
154 ZEHR, supra note 146.
155 Id. at 8.
156 See PATRICIA HUGHES & MARY JANE MOSSMAN, RE-THINKING ACCESS TO CRIMINAL
JUSTICE IN CANADA: A CRITICAL REVIEW OF NEEDS, RESPONSES AND RESTORATIVE JUSTICE

INITIATIVES 85-86 (Dep't Justice Can. 2001).
151 See generally Shelley Johnson Listwan et al., Cracks in the Penal Harm Movement:
Evidence from the Field, 7 CRIMINOLOGY & PUB. POL'Y 423 (2008); Kent Roach, Changing
Punishment at the Turn of the Century: Restorative Justice on the Rise, 42 CANADIAN J.
CRIMINOLOGY 249 (2000).
exist. 158 Some researchers estimate that formal restorative justice

programs are used in at least half of U.S. states. 159
One area where community accountability has proliferated over the
last 20 years has been in the non-profit sector and in the transformative
justice movement, as they operate outside traditional criminal legal and
carceral spaces.160 They are mostly associated with the prison abolition
movement.1 61 Much of this work has been pioneered by women of color
and LGBTQIA+ people.162 Transformative justice activists see the
criminal legal system as responsible for committing acts of violence and
harm against marginalized communities and seeks to address individual
and community violence within the community. 163 While the
transformative justice movement has used community accountability as a
158 Mark S. Umbreit & Jean Greenwood, National Survey of Victim-Offender Mediation
Programsin the UnitedStates, 16 MEDIATION QUARTERLY 235, 236-41 (1999). See generally
Russ Immarigeon, Restorative Justice, Juvenile Offenders, and Crime Victims: A Review of
the Literature,RESTORATIVE JUV. JUST.: REPAIRING THE HARM OF YOUTH CRIME 305 (Gordon
Bazemore & Lode Walgrave eds., Criminal Justice Press 1999).
159 Sandra Pavelka, Restorative Justice in the States: An Analysis of Statutory Legislation
and Policy, 2 JUST. POL'Y J. 1, 2 (2016); MARK UMBREIT & MARILYN PETERSON ARMOUR,
RESTORATIVE JUSTICE DIALOGUE: AN ESSENTIAL GUIDE FOR RESEARCH AND PRACTICE (2011).
Common Justice operates the only non-profit pre-charge adult diversion restorative justice
program in the U.S, while The Sycamore Tree Project, a faith-based restorative justice pro-
gram that operates within prisons, is used here in the U.S. and in over 30 other countries. The
Sycamore Tree Project was developed by Prison Fellowship International. It has been in ex-
istence for over 20 years, with the UK and New Zealand as early adopters. The program brings
crime victims into prison settings to meet people who have committed crimes. Using a struc-
tured guide, a facilitator leads discussions on a series of topics related to the impact of crime.
160 Transformative justice ("TJ) is an abolitionist framework that views systems like pris-
ons, police and others as sites where significant amounts of violence takes place and as sys-
tems that were created to be violent to maintain social control. Mia Mingus, Transformative
Justice:A BriefDescription,TRANSFORMHARM.COM, https://perma.cc/2AHB-SCZM (last vis-
ited Jan. 23, 2022). Some TJ organizations include, INCITE! Women, Trans and Gender Non-
Conforming People of Color Against Violence, Generation FIVE, and the Bay Area Trans-
formative Justice Collective (BATJC").
161 Mimi E. Kim, From CarceralFeminism to Transformative Justice: Women-of-Color
Feminism and Alternatives to Incarceration, 27 J. ETHNIC & CULTURAL DIVERSITY IN SOC.
WORK 219, 226 (2018); Mimi E. Kim, Transformative Justice and Restorative Justice: Gen-
der-Based Violence andAlternative Visions of Justice in the United States, 27 INT'L REV.
VICTIMOLOGY 162, 169 (2021) [hereinafter Kim, TransformativeJustice and Restorative Jus-
tice]. Prison abolition is a term that is used to express opposition to the criminal legal system
and to measures that seek to reform and legitimize current crime control measures.
162 Kim, TransformativeJustice and Restorative Justice, supranote 161, at 162-72.
163 See Community Accountability: Emerging Movements to Transform Violence, 37 SOC.
JUST., no. 4, 2011-2012, at 1, 4-5; Donna K. Coker, TransformativeJustice: Anti-Subordina-
tion Processes in Cases of Domestic Violence, in RESTORATIVE JUSTICE AND FAMILY
VIOLENCE 128, 144-46 (Heather Strang & John Braithwaite eds., 2002).
means of harm-reduction and repair since the 1970s, it is primarily

focused on transforming communities and systems. 164
While transformative justice is more concerned with transforming
communities and systems, restorative justice is focused on the individuals
and community members most directly impacted by an act of harm. 165
Restorative processes take on different forms, but they all share similar
values of truth-telling, accountability, and the humanity of all people. 166
Restorative processes bring together people who have caused harm,
people who have been harmed, and support people and community
members with difficult, but often necessary conversations. 167 Restorative
justice organizations and practitioners also operate and exist outside of
the formal criminal legal system. 168 For example, restorative justice in
schools has been popularized, both at the K-12 level and on college
campuses in cases of student misconduct. 169 Restorative justice facilitator
training programs have also cropped up in an effort to train additional
people to respond to harm without involving the criminal legal system. 171
Most recently, a focus on restorative justice in cases of sexual harm has
been renewed. 171
How Is Restorative Justice Different?

Current criminal legal processes are concerned with the violation of
criminal statutes. The violation of a statute is a harm against the state.
Therefore, justice requires that the state determine guilt and impose a
punishment on the person responsible for the violation. Criminal legal
processes center on a series of questions, including: What laws have been
164 See Mimi E. Kim, Moving Beyond Critique: Creative Interventions and Reconstruc-
tions of Community Accountability, 37 Soc. JUST., no. 4, 2011-2012, at 14, 17 [hereinafter
Kim, Moving Beyond Critique] (discussing community accountability measures and trans-
formative justice have been used as harm-reduction in cases of gender-based violence since
the 1970s).
165 See ZEHR, supra note 146, at 38.
166 ZEHR & GOHAR, supra note 149, at 13, 22, 27, 37.
167 Id. at 25, 37.
Examples include Common Justice in Brooklyn and the Bronx; Project NIA and the
168
Community Justice for Youth Institute in Chicago; Restorative Justice for Oakland Youth
(RJOY) and Community Works in Oakland and San Francisco; the Community Conferencing
Center in Baltimore; and the Insight Prison Project in San Quentin, among others.
169 See generally Belinda Hopkins, Restorative Justice in Schools, 17 SUPPORT FOR
LEARNING 144 (2003).
170 Vermont Law School and The University of San Diego Center for Restorative Justice
are two such training and certificate programs. See Restorative Justice Degrees, VT. L. SCH.,
https://perma.cc/MC9E-NM4R (last visited Jan. 23, 2022); Restorative Justice, UNI. OF SAN
DIEGO, CTR. FOR RESTORATIVE JUST., https://perma.cc/RW3Z-XLT5 (last visited Jan. 23,
2022).
171 See Kim, Moving Beyond Critique, supra note 164, at 14-35 and accompanying note.
broken? Who did it? What do they deserve? There are three main
philosophical arguments for current criminal legal processes. 172 The first
centers on retribution. From a retributive or just desserts perspective,
people who violate criminal statutes need to be punished because it is
what they deserve. 173 Deterrence, on the other hand, implies that
punishment will either stop an individual from committing another crime
or will stop others from doing so.174 Finally, incapacitation seeks to keep
the community safe from dangerous people.1" All of these notions are
centered solely on people who violate the law. There is little-and often
no-attention given to people who have been harmed by these law
violations. Yet, there is a growing body of literature that critiques system
responses to those who have caused harm and those who have been
harmed. 176
Restorative justice offers a framework that focuses on all people
impacted by harm. This includes people who have perpetrated harmful
acts, those who have experienced them, and others who have been
impacted by them. It asks a very different series of questions, and as such
offers distinctly varied outcomes. For instance, while criminal legal
processes are concerned with which criminal statute was violated,
restorative processes ask who was harmed. Instead of focusing on who is
guilty and what punishment they deserve, restorative processes focus on
the needs of the person who has been harmed and who is obliged to meet
those needs. Restorative processes achieve justice by involving those
affected by a harm in the process to collectively address the specific harm
at hand. 177 To make justice more healing, restorative, and transformative,
people who have been harmed must be satisfied with the process and
people who cause harm must acknowledge their actions. 178 They must
fully understand the impact of their behavior and must take steps toward
active accountability.179 Accountability measures to repair harm must also
address the reason for the harmful behavior.180 The final outcome seeks
172 See generally TERENCE MIETHE & HONG LU, PUNISHMENT: A COMPARATIVE
HISTORICAL PERSPECTIVE (1st ed. 2005).
173 See generally id.
176 See, e.g., Dale C. Spencer, Cultural Criminology: An Invitation . . to What?, 19
CRITICAL CRIMINOLOGY 197 (2011).
177 Based on the authors' experience.
178 Based on the authors' experience. Satisfaction with the restorative process means dif-
ferent things to different clients and is often based on their goals and expectation. Restorative
processes require that practitioners seek feedback on the experiences of their clients.
179 Id.
180 ZEHR, supra note 146, at 40-43.
to bring "closure" to both parties and to help them both successfully

integrate back into the community."'
False assumptions about restorative justice are that it is soft on crime
and does not hold people accountable because it does not punish
wrongdoing.1 82 Equating accountability with punishment is misguided.
Punishment does little to help people who have caused harm fully
understand the impact and aftermath of the harm that they have caused.
Punishment does not offer opportunities for accountability that are linked
to the specific harmful behavior. Finally, punishment does not typically
help crime survivors to heal. Restorative justice offers the opportunity for
these types of outcomes.
Is Restorative Justice Effective?

Studying the effectiveness of restorative justice proves to be
challenging because of a lack of standardization and implementation
across practices and programs and because of definitional considerations
across research studies. 183 Yet, it is the very lack of standardization, some
argue, that makes restorative justice more effective. 184 No two restorative
processes are the same because the needs of parties involved are never
identical. This makes measuring and evaluating restorative processes
more difficult. In addition, the goals of restorative justice are difficult to
operationalize as outcomes measures in scientific studies. 185
To overcome methodological shortcomings, researchers have turned
to more robust meta-analyses to measure effectiveness. 186 Meta-analytic
181 ZEHR & GOHAR, supra note 148, at 41 (noting how the word "closure" is not always
preferable for people who have experienced harm because it suggests that everything can be
placed in the past. The word does, however, capture a sense of being able to move forward
which is how it is being used here in a restorative justice context.).
182 See Williamson M. Evers & Vicki E. Alger, Restorative Justice is Unfair to Students
Who Want to Learn, INDEP. INST. (Sept. 2, 2020), https://perma.cc/LM2M-CD83 (offering a
typical view of the opposition to restorative options which is that restorative practices in
schools lead to a culture of leniency and a lack of accountability).
183 Daye Gang et al., A CallforEvaluation ofRestorative Justice Programs, 22 TRAUMA,
VIOLENCE, & ABUSE 186, 186-90 (2019).
184 Based on the authors' experience as restorative justice practitioners, they have learned
that no two restorative justice processes are the same. While all processes follow a set of values
and guidelines described elsewhere in this paper, each process focuses on the specific needs
of the individual participants in any given process.
185 Lois Presser & Patricia Van Voorhis, Values and Evaluation: Assessing Processes and
Outcomes of Restorative Justice Programs, 48 CRIME & DELINQ. 162, 171 (2002); see also
Mark S. Umbreit, Crime Victims Seeking Fairness, Not Revenge: Tow ardRestorativeJustice,
53 FED. PROBATION 52 (1989).
186 William Bradshaw et al., The Effect of Victim Offender Mediationon Juvenile Offender
Recidivism: A Meta-analysis, 24 CONFLICT RESOL. Q. 87, 89 (2006); Jeff Latimer et al., The
Effectiveness of Restorative Justice Practices:A Meta-analysis, 85 PRISON J. 127, 131 (2005);
reviews tend to find more positive outcomes in restorative processes than

in criminal legal processes across various outcome measures. 187 For
example, restorative options are more likely to lead to recidivism
reduction in both non-violent and violent offenses, and are seen as a cost-
effective mechanism for doing so.'SS People who have caused harm and
who have engaged in restorative justice are also more likely to comply
with formal sanctions.189 These measurement effects, though positive, are
generally small.
Studies on victim satisfaction and restorative justice find that
individuals who have been harmed and who had the opportunity to engage
in a restorative conference with the person who caused them harm were
more satisfied than those who experienced a criminal legal process
only.190 Finally, crime survivors who have engaged in restorative
processes may be more prepared to deal with the impacts of trauma.1 91
Robin J. Wilson et al., Circles of Support and Accountability: Engaging Community Volun-
teers in the Management of High-Risk Sexual Offenders, 46 HOWARD J. 1, 5 (2005).
187 Restorative justice conferencing (RJC) using face-to-face meetings of offenders and
victims: Effects on offender recidivism and victim satisfaction. A systematic review. Studies
on the effectiveness of restorative justice have measured satisfaction among people who have
been harmed, reduction in repeat offending for violent offenses, ability for people who have
been harmed to deal with trauma and post-traumatic stress, and compliance with formal sanc-
tions. People who have been harmed and have participated in restorative justice experience
less anxiety about further victimization, less fear of crime overall, and less anger about their
specific harm. See generally Caroline M. Angel et al., Short-Term Effects ofRestorative Jus-
tice Conferences on Post-TraumaticStress Symptoms Among Robbery and Burglary Victims:
A Randomized Controlled Trial, 10 J. EXP. CRIMINOLOGY 291, 292 (2014); LAWRENCE W.
SHERMAN & HEATHER STRANG, RESTORATIVE JUSTICE: THE EVIDENCE 8 (The Smith Institute
2007); Lawrence W. Sherman et al., Effects ofFace-to-FaceRestorative Justice on Victims of
Crime in Four Randomized, Controlled Trials, 1 J. EXPERIMENTAL CRIMINOLOGY 367, 371
(2005) [hereinafter Four Randomized Controlled Trials]; HEATHER STRANG ET AL.,
RESTORATIVE JUSTICE CONFERENCING (RJC) USING FACE-TO-FACE MEETINGS OF OFFENDERS
AND VICTIMS: EFFECTS ON OFFENDER RECIDIVISM AND VICTIM SATISFACTION. A SYSTEMATIC
REVIEW 5 (David Wilson eds., The Campbell Collaborations 2013).
188 See generally JAMES BONTA ET AL., SOLICITOR GEN. CANADA, RESTORATIVE JUSTICE:
AN EVALUATION OF THE RESTORATIVE RESOLUTIONS PROJECT 29 (1998); James Bonta et al.,
An Outcome Evaluation of a Restorative Justice Alternative to Incarceration, 5 CONTEMP.
JUST. R. 319, 319-38 (2002); Bradshaw, et al., supra note 182, at 94; Jeff Latimer et al., supra
note 186, at 137; William R. Nugent et al., Participationin Victim-Offender Mediation and
the Prevalenceand Severity of SubsequentDelinquentBehavior:A Meta-Analysis, 2003 UTAH
L. REV. 137, 164 (2003); Nancy Rodriguez, Restorative Justice at Work: Examining the Im-
pact ofRestorative Justice Resolutions on Juvenile Recidivism, 53 CRIME & DELINQ. 355, 374-
75 (2007); Lawrence W. Sherman et al., Are Restorative Justice ConferencesEffective in Re-
ducing Repeat Offending? Findingsfrom a Campbell Systematic Review 31 J. QUANTITATIVE
CRIMINOLOGY 1, 20 (2015).
189 SHERMAN & STRANG, supra note 187, at 88-89.
190 Mark S. Umbriet, Robert B. Coates & Betty Vos, The Impact of Victim-Offender Me-
diation: Two Decades ofResearch, 65 FED. PROBATION 29, 31 (2001).
191 Caroline M. Angel et al., supranote 187, at 295-96.
People who experience harm who engage in restorative processes

experience decreased in symptoms of post-traumatic stress. 192
V. THE JOURNEY TO RESTORATIVE JUSTICE

FOR CASES OF SEXUAL HARM
The rapes that the authors experienced in 1999 lead them on very
different paths. Alexa immediately reported her rape to the police. This
began a lengthy process during which Alexa was interviewed several
times by law enforcement and prosecutors. Alexa had misgivings about
testifying. However, she was often encouraged by those involved with the
case to testify to protect the community from the man who raped her.
Alexa also testified because she believed that it would help her heal and
move on from the experience. Unfortunately, even though the man who
raped her was found guilty and received a lengthy sentence, the unusual
result did not mitigate the significant impact the criminal legal process
had on her mental health and well-being.
Alissa did not tell anyone about her rape. Both the acute and chronic
mental health impacts of the assault and the silence were devastating.
Still, she remained silent about her rape for 15 years. In 2014, Alissa
began opening up about the experience, because as a criminal justice
professor and sex crimes expert, she felt like a fraud not owning her
experience. Disclosing her rape had additional acute mental health
outcomes, including flashbacks and nightmares that returned after many
years. One of the first people she disclosed to was Dr. Jill S. Levenson,
her colleague and friend who is a therapist who works with both survivors
of sexual violence and individuals who have perpetrated it. 193 In 2016, she
asked Alissa if she would be willing to speak to the men in her treatment
program as "Alissa, rape survivor." It was this initial conversation and
subsequent work together that led Alissa on a path toward embracing
restorative justice. Further conversations with Alexa and the opportunity
to participate in vicarious restorative justice process ("VRJ") sessions
brought Alexa to a similar journey.
As sex crimes researchers, survivors, restorative justice participants
and restorative justice practitioners, the authors have learned that a
holistic approach to addressing harm is necessary if society ultimately
seeks to help survivors to heal and to decrease the overall occurrence of
sexual harm. Both authors found their most profound moments of healing
192 See STRANG ET AL., supra note 187, at 43-44.

Dr. Jill S. Levenson is a Professor of Social Work at Barry University in Miami, Flor-
193
ida. She began her career working with survivors of sexual violence. Her therapeutic practice
mostly focuses on individual and group therapy with men who have been mandated to treat-
ment after a conviction for a sexual offense.
while engaging in the restorative process as survivors. The next section

addresses the often unmet needs of people who have experienced harm
and the needs of people who have caused sexual harm. The authors then
make the case for restorative justice as a tool to address the needs of all
people impacted by sexual harm.
Understandingthe Needs of People Who Have Been Sexually Harmed

The impacts of sexual harm are profound. While no two people
experience sexual harm or its aftermath in the same way, trauma can
significantly impact how survivors connect to others and to the world
around them. 194 "Trauma disrupts our relationship with ourselves, our
bodies, our minds ours very beings. It interrupts our ability to relate to
others. Trauma destroys our ability to trust others, to trust our thoughts,
or to trust our bodies." 195 This inability to connect often begins during an
initial experience of sexual harm when the person being harmed
disconnects, or dissociates, from themselves.1 96 Survivors will often
discuss how they felt separated from their body or that they watched what
happened to them from outside of themselves.197
When Alexa describes the experience of her rape, she talks about
how she was able to focus on items in the room, like the clock or her
roommate's face. In her mind she focused on what she would do after the
rape was over. Alissa, on the other hand, remembers that she separated
from her body and watched her rape from somewhere above the scene,
but counted the waves to stay focused on something other than the rape. 198
People who experience trauma often need to share their stories in
their own way, something that is not possible in a traditional criminal
194 See JUDITH HERMAN, TRAUMA AND RECOVERY: THE AFTERMATH OF VIOLENCE-FROM
DOMESTIC ABUSE TO POLITICAL TERROR 42-43 (1992).

195 ALISSA R. ACKERMAN & JILL S. LEVENSON, HEALING FROM SEXUAL VIOLENCE: THE
CASE FOR VICARIOUS RESTORATIVE JUSTICE 33-34 (2019).

196 Herman writes:
A rape survivor describes this detached state: "I left my body at that point. I was
over next to the bed, watching this happen . . .. I disassociated from the helpless-
ness. I was standing next to me and there was just this shell on the bed . . .. There
was just a feeling of flatness. I was just there. When I repicture the room, I don't
picture it from the bed. I picture it from the side of the bed. That's where I was
watching from."
HERMAN, supra note 194, at 43 (footnote omitted).
197 The theory of dissociation was first established by Pierre Janet in 1889. Most current
ideas about dissociation and PTSD stem from his work.
198 Other survivors have spoken about similar experiences. For instance, Thordis Elva
states she now knows how many seconds there are in two hours because she counted the sec-
onds on her clock during her entire rape. See Thordis Elva & Tom Stranger, Our Story ofRape
and Reconciliation, TEDWOMEN (2016), https://perma.cc/D526-QGEY.
legal process. 199 The criminal legal response to sexual harm is

problematic because it often confuses, disappoints, and traumatizes
survivors in several ways including the complex rules and procedures of
the legal system, the public nature of the legal proceedings, the relegation
of a survivor's role in legal proceedings, the requirement to retell the
intimate details of the act of sexual harm, the sequestering of witnesses
who may be the survivor's friends and family, and defense attorney
questioning which may exacerbate the self-blame the survivor is already
experiencing. 200
One of the country's leading experts on trauma and abuse, Dr. Judith
Herman explains that "the wishes and needs of victims are often
diametrically opposed to requirements of legal proceedings." 2 01 Survivors
of sexual harm have many needs that are left unmet by the criminal legal
system. Overall, studies with people who have experienced sexual harm
suggest that they are more interested in having a voice in the dialogue
with criminal legal professionals, recognition, and acknowledgement of
harm by the person that perpetrated it, preventing sexual harm in the
future, reconnecting with their communities, and in treatment for people
who have harmed, rather than punishment.202
Often survivors enter the criminal legal system as a means of
validating their experience. 203 It is critical that survivors are believed,
absolved, and vindicated of any wrongdoing or responsibility for what
was done to them. 204 Many survivors simply seek a voice and
empowerment. Some survivors express wanting to be believed and for the
perpetrator of the harm to confess. 205 However, in most cases, survivors
are not able to tell their story in their own words or in their time during
court testimony.206 They are restricted by the questions that the prosecutor
199 See generally Rebecca Campbell et al., The Impact of Sexual Assault Nurse Examiner
Programson Criminal Justice Case Outcomes: A Multisite Replication Study, 20 VIOLENCE
AGAINST WOMEN 607 (2014) (illustrating that the traditional legal system is not designed for
this process through research showing that most cases at the six SANE sites never led to crim-
inal prosecution due to high rates of case attrition that begins early in the investigation pro-
cess). See also Shaw, supra note 45, at 454-55 (finding that fewer than 30% of cases are re-
ferred for prosecution and that police are less likely to complete an investigation if they
believed the victim was becoming uncooperative, incompetent, or weak. These are common
presentations of acute and chronic trauma.).
200 See Herman, supra note 19, at 574; see also VANDIVER ET AL., supra note 56, at 68.
201 See Herman, supra note 19, at 574.
202 Id.
203 See id. at 585.
204 OUDSHOORN ET AL., supra note 129, at 27.
205 Herman, supra note 19, at 585.
206 Id. at 574.
and defense attorneys ask. Thus, their testimony does not accurately
represent their stories.
Alexa remembers that part of the reason she was fearful about
testifying was the possibility that she would say something that conflicted
with her initial report to law enforcement. During the preparation process,
she was told that this could be a way that a defense attorney could
discredit her during the criminal trial. As such, Alexa still feels that her
testimony does not adequately communicate what she experienced the
night she was raped.
The ability to reconnect with and tell one's story can also help a
person reconnect with their bodies and with other people. 2 07 Bessel van
der Kolk explains that traumatic experiences often leave people
speechless because they are unable to find words to describe the feelings
and sensations that overwhelm their senses when they think about a
traumatic experience. 208 Finding the right language leads to self-
awareness and healing. 209 That language often involves metaphors related
to the body itself. This is because trauma impacts the mind, body, and
spirit.210 It can affect every layer of the body, from the cellular and
physiological to the psychological. 21 1 Simply put, the brain remembers
what the body tries to forget. 212
If someone experiences trauma and does not or cannot take the steps
necessary to heal from that trauma, it can overtake their body and their
brain. 2 13 Therefore, long after an experience of sexual harm, a person may
not feel safe in their own skin. This can result in chronic pain in the body,
including chronic pelvic pain, muscle tension, headaches, and other
psychosomatic issues.2 14 It can also result in total disconnection and
dissociation from the body. 21 5 Bessel van der Kolk explains that trauma
survivors often become experts in numbing because the body sensations
that arise from trauma are often too overwhelming to process. 216 The
207 See generally VAN DER KOLK, supra note 152.

208 See Bessel van der Kolk, The Neurobiology ofChildhood Trauma andAbuse, 12 CHILD
& ADOLESCENT PSYCHIATRIC CLINICS N. AM. 293, 305 (2003).
209 ACKERMAN & LEVENSON, supra note 195, at 39.
210 VAN DER KOLK, supra note 152, at 66-67.
211 See HERMAN, supra note 194, at 37; Bessel van der Kolk, ClinicalImplications ofNeu-
roscience Research in PTSD, 1071 ANNALS OF THE N.Y. ACAD. SCI. 277 passim (2006).
213 VAN DER KOLK, supra note 152, at 67.
214 VAN DER KOLK, supra note 152, at 268; Alissa R. Ackerman & Alexa Sardina, Beyond
Fear: The Sex Crimes Podcast, Bonus Episode: The Things Left Unsaid, https://perma.cc
/WHX4-F9FC.
[https://perma.cc/WHX4-F9FC] (last visited Jan. 23, 2022).
215 VAN DER KOLK, supra note 152, at 91.
216 Id., at 90-91.
effects of numbing can be seen in both the psychological and behavioral

consequences of sexual trauma.21 7
Compared to people who have not experienced sexual harm, those
who have are three times more likely to suffer from depression, 218 but
sexual harm can also lead to increased anxiety and even obsessive
compulsive disorder (OCD). 219 Those who have experienced sexual harm
are six times more likely to suffer from PTSD, 13 times more likely to
abuse alcohol and 26 times more likely to abuse drugs.22 0 Just as some
people may turn to alcohol or drugs as a way to forget painful memories
or to numb feelings of distress and anxiety, or even as a coping
mechanism, eating disorders, like anorexia or bulimia, can also be a way
to exert control over the body and cope with negative emotions.22 1
Self-harm is also common among those who have experienced
sexual harm.222 Deliberate self-harm is when people inflict physical harm
on themselves, usually in private and without suicidal intentions. Some
survivors may use self-harm to cope with difficult or painful feelings. 223
Common forms of self-harm include biting, cutting, burning, or
scratching the skin, and even pulling out hair.224 Some people may engage
in self-harm to numb their pain, feel a release or reclaim a sense of
control.22 5 Unfortunately, this sense of relief is only temporary and thus
the desire to harm oneself resurfaces. 226 This encourages a cycle of self-
harm that can cause serious damage, infection and medical issues that can
be life-threatening. 22 7 Lastly, survivors of sexual harm are four times
more likely to contemplate suicide. 228
217 Id.
218 VANDIVER ET AL., supra note 56, at 75.
219 Asaf Caspi et al., Relationship Between Childhood Sexual Abuse and Obsessive-Com-
pulsive Disorder: Case Control Study, 45 ISR. J. PSYCHIATRY & RELATED SCI. 177 (2008).
221 Caitlyn Hamilton, Trauma, Sexual Assault and Eating Disorders, NAT'L EATING
DISORDERS ASS'N, https://perma.cc/5FNU-2AX7 (last visited Jan. 23, 2022).
222 Colleen M. Lang & Komal Sharma-Patel, The Relation Between Childhood Maltreat-
ment and Self-Injury: A Review of the Literature on Conceptualization and Intervention, 12
TRAUMA, VIOLENCE, & ABUSE 23, 25 (2011) (explaining that self-harm is common among
survivors of sexual harm, with the strongest association between self-injury and child sexual
abuse); Mireille Cyr et al., Clinical Correlates and Repetition of Self-Harming Behaviors
Among FemaleAdolescent Victims of SexualAbuse 14 J. CHILD SEXUAL ABUSE 49, 51 (2005).
223 Lang & Sharma-Patel, supra note 222, at 28.
224 SelfHarm, RAINN, https://perma.cc/SZJ5-WJVU (last visited Jan. 23, 2022) [herein-
after Self Harm, RAINN].

221 Id.; van der Kolk, supra note 211.
226 Self Harm, RAINN, supra note 224.
227 Id.
The authors both speak publicly about their alcohol and drug abuse
in the aftermath of rape. 229 Like many other survivors of sexual violence,
Alexa struggled with anorexia for many years following her rape. Alissa
also struggled with self-harm for many years and attempted suicide twice
in the three years following her rape.
People who have unresolved trauma or those who have a diagnosis
of PTSD may live in a state of constant hyper-arousal, acute
hypervigilance, or complete dissociation from the body. 230 Both the
authors, for example, experience hypervigilance and an overly sensitive
startle response. Something as loud as fireworks or as quiet as an
unexpected whisper can trigger a trauma response in them. With an
overactivated trauma response, the brain is less likely to properly interpret
cues. 231 This may lead to the inability to determine that something could
be dangerous or, at the other extreme, that everything is a threat.232
Sexual trauma shapes the way one connects with and thinks about
themselves and others. 233 It can impact how one processes emotions and
how they behave. 2 34 Understanding these impacts and the unique ways
they are experienced by individual survivors, including helping survivors
to understand these impacts in themselves, can aid in the healing
process. 235 There are many additional needs that people who experience
sexual harm may seek to address. 236 First and foremost, they need to feel
safe and secure, both physically and emotionally. 237 This requires
consistent and authentic relationships that help survivors regain trust.2 38
People rarely lie about experiencing sexual harm and rates of false reports
229 ACKERMAN & LEVENSON, supra note 195.

230 Jennifer C. Jones. & David H. Barlow, The Etiology of PosttraumaticStress
Disorder,
10 CLINICAL PSYCH. REV. 299 passim (1990).
231 Gordon H. Bowers & Heidi Sivers, Cognitive Impact of Traumatic Events, 10 DEV.
&
PSYCHOPATHOLOGY 625, 625-26 (1998).

232 van der Kolk, supra note 208, at 293.
233 Herman, supra note 19.
234 Id.
235 Based on the authors' experiences as restorative justice facilitators and in prior advo-
cacy work with people who have experienced sexual harm, they have found that helping peo-
ple to understand how and why their bodies react as they do helps provide context and under-
standing which ultimately helps in making sense of experiences, decreasing shame, and
promoting healing.
236 OUDSHOORN ET AL., supra note 129, at 27-28.
237 Id. It is the authors' practice to promote safety and security at every step of the
process
by keeping the person who was sexually harmed in control of decision making to the extent
that is possible.
238 Based on the authors' experience, consistent and authentic relationships require that
the facilitator be accountable for their actions. Follow through is integral to building trust in
facilitator-client relationships.
remain consistently low.239 As such, when someone discloses sexual

harm, they need to be believed, absolved, and vindicated. Like survivors
of other crimes, sexual harm survivors often seek acknowledgement of
the harm done to them.
The first thing that happens when someone experiences unwanted
sexual contact is that they lose control over choices about their body.
Giving them the ability to make choices about their healing and about
their needs helps them empower themselves and regain a sense of control.
Similarly, people who experience sexual harm need to be heard. They
need opportunities to share their stories in safe spaces. 240 Survivors need
to mourn what they have lost and grieve their pain. They often feel the
need to express the impacts of the harm directly to the person who harmed
them or to others who have committed similar harms.241 They might also
have questions that only the person who harmed them can answer.
Survivors need access to education and support. This might include
education around trauma responses and the mental health outcomes of
trauma.24 2 It may include helping survivors gain clarity around why their
body responded the way it did during an experience of sexual harm.24 3
People who have been sexually harmed need to know that there are
different options and choices available to them. Finally, survivors need
accountability surrounding unhealthy coping strategies that they have
engaged in the aftermath of sexual harm.244
239 Andre W. E. A. De Zutter et al., The Prevalence of FalseAllegations of Rape in the

United States from 2006-2010, 2 J. FORENSIC PSYCH. 2, 5 (2017); David Lisak et al., False
Allegations of Sexual Assault: An Analysis of Ten Years of Reported Cases, 16 VIOLENCE
AGAINST WOMEN 1318, 1331 (2010).
240 De Zutter et al., supra note 239. Lisak et al., supra note 239.
241 OUDSHOORN ET AL., supra note at 129, at 3.
One personal example is how validating it was for both authors to learn about the neu-
242
robiology of trauma to make better sense of their experiences. In particular, reading The Body
Keeps the Score, supra note 152, and Trauma and Recovery, supra note 194, changed the way
the authors thought about their experiences.
243 OUDSHOORN ET AL., supra note 129, at 27. Oudshoorn and colleagues provide the ex-
amples of a male survivor experiencing an erection or ejaculation during an assault and of a
female survivor experiencing an orgasm while being abused. It has been our experience that
education goes beyond these physical explanations. For instance, helping a survivor to under-
stand the freeze response as a completely normal reaction to sexual trauma helps put them at
ease. Similarly, explaining how individuals react differently in different situations helps sur-
vivors to feel less alone.
244 Based on the authors' experience, naming unhealthy coping mechanisms and engaging
conversation with clients who have experienced sexual harm around these coping mechanisms
is critical. Ultimately, it is up to the person who was harmed to address any unhealthy coping
strategies. Discussions around tools to use and healthy coping strategies can begin the ac-
countability process for those who have been harmed.
Understandingthe Needs of People Who Have PerpetratedSexual

Harn
If society is serious about eradicating sexual violence and committed
to meeting the needs of people who have experienced sexual harm, then
the needs of those that have caused the harm cannot be ignored. Sexually
harmful behavior does not exist in a vacuum. The decision to commit a
harmful sexual act can stem from individual experiences of harm, the
inability to cope with life stressors, and societal-level messages about
sexuality and masculinity. 245 These variables are not the cause of sexual
harm, nor do they excuse or justify such behavior, but they help
researchers and practitioners to understand why people engage in these
acts.
Addressing harmful sexual behavior is challenging. It requires that
the underlying root causes of behavior are appropriately addressed.
Providing support to people who have caused sexual harm allows them to
engage in the process of unpacking the experiences that led to their
behavior. This most often requires treatment providers who specialize in
problematic sexual behavior.246 Additionally, many people who
perpetrate sexual harm lack empathy for the people they have harmed. 247
Creating processes that help them to build empathy can be beneficial.
Being fully responsible and accountable for one's behavior helps address
these needs and the needs of people who have experienced sexual harm.
Restorative justice is one tool that can aid this process, because remaining
accountable for the harm someone has caused also allows that person to
address the underlying causes of that harm.
Earlier the authors discussed the many needs that must be addressed
for people who have experienced sexual harm. 248 Many of the needs of
people who have caused sexual harm can be met by addressing those
needs. For instance, the need for people who have experienced sexual
harm to feel be heard and safe and secure in doing so may be met by the
person who caused the harm to actively listen to the survivor telling their
story. The need for accountability can be met by naming the action,
245 Anthony R. Beech & Ian J. Mitchell, Intimacy Deficits/Attachment Problems in Sexual
Offenders: Towards a Neurobiological Explanation, in 1 THE WILEY HANDBOOK ON THE
THEORIES, ASSESSMENT, AND TREATMENT OF SEXUAL OFFENDING 187 (Douglas P. Boer ed.,
2016); JILL S. LEVENSON ET AL., TRAUMA-INFORMED CARE: TRANSFORMING TREATMENT FOR
PEOPLE WHO HAVE SEXUALLY ABUSED 4 (2017); TERRY, supra note 124, at 57-58, 67, 106.
247 W.L. Marshall et al., Empathy in Sex Offenders, 15 CLINICAL PSYCH. REV. 99, 109
(1995); L.M. Williams & D. Finklehor, The Characteristicsof IncestuousFathers:A Review

ofRecent Studies, in HANDBOOK ON SEXUAL ASSAULT: ISSUES, THEORIES, AND TREATMENT OF
THE OFFENDER 231, 248 (W.L. Marshall, D.R. Laws, & H.E. Barbaree eds., 1990).
248 OUDSHOORN ET AL., supra note 129, at 27-28.
accepting responsibility for the harm, taking the steps to understand why
they behaved in such a harmful way, and making a commitment to do the
hard work necessary to ensure it does not happen again. The need to be
believed, absolved, and vindicated can also be addressed by
acknowledging what happened without excuses or justifications for the
behavior. The need to have a voice and feel empowered can be met by
listening, demonstrating remorse, and validating the experience. Finally,
the need for information and options can be met by answering any
questions the survivor has and sharing the steps one has taken and will
continue to take to ensure that their behavior is different in the future.
Restorative justice provides the opportunity and the space for all these
needs to be addressed in a safe and meaningful way.
As with restorative justice more generally, cases of sexual harm can
take many forms. Each case is handled with the same care and values
related to authenticity, transparency, honesty, and a common humanity,
but no two cases are the same. This is because no two people have the
same needs or goals and because similar needs and goals may be
addressed in distinctly different ways. It is important to be mindful that
restorative justice is not for all people, 249 but that most people who engage
in the process are satisfied with the results.
In the following section, the authors begin by talking about stepping
into restorative justice. They share Alissa's experience of participating in
and then co-creating the vicarious restorative justice process ("VRJ") for
cases of sexual harm. The authors then share Alexa's experience of
participating in a vicarious accountability circle process with Alissa. They
go on to discuss the typical forms of restorative justice in cases of sexual
harm, including victim-offender conferencing, circle processes, and VRJ.
The authors provide a case example of a victim-offender dialogue that
Alissa facilitated, including written comments from those participants
provided after their restorative justice process. Lastly, the authors share a
short case example of a VRJ process.
VI. BUILDING OUR PROFESSIONAL PRACTICE
On a Monday evening in April of 2016, Alissa met a group of men

in an encounter that would change all of their lives. The goal of this
experience was to help clients in Dr. Levenson's treatment group to build
empathy. For this to occur, people must feel safe; and yet these men had
every reason to be in fear. Their fear was palpable and valid, especially
because of the way society treats people who have committed sexual
249 Mark S. Umbreit et al., Restorative Justice Dialogue: A Multi-Dimensional, Evidence-
Based Practice Theory, 10 CONTEMP. JUST. REV. 23, 29 (2007).

offenses. Alissa knew she had an opportunity to help the participants gain
insight into how their actions may have impacted the people they had
harmed simply by approaching them with vulnerability and respect. This,
in turn, allowed the men to model that same vulnerability. What Alissa
was not prepared for was the healing impacts this experience had on her
personally. Here, she describes the experience:
My body was visibly shaking as I took my seat at the front of the
room. The door, my escape, was to my right, Jill sat to my left.
The men sat in a circle of chairs taking up the rest of the room. I
was both terrified and intrigued. This was the first time I was in a
room full of people who had committed sexual offenses without
the security of my title, Dr. Ackerman. My fear was not because
I was seated in a room of men who have perpetrated sexual
violence. It was directly related to my promise to be open,
authentic and vulnerable. Still, the men were far more terrified
than I was. Having never had to sit face-to-face with someone
who had experienced sexual violence, I am sure they were
expecting my anger and wrath, not my honesty and a common
humanity.
At the end of the session, a man who had served 20 years in prison
for a violent rape that was very similar to Alissa's asked if he could give
her a hug and she immediately hugged him.250 It was such a genuine
expression of understanding and healing for them both. The night after
this session, Alissa was able to return to the place where she was raped
and make peace with it. This would not have happened without the
healing dialogue that had occurred just 24 hours prior. Approaching
difficult conversations in this fashion allows all parties involved to feel
seen and heard. While this experience was not originally envisioned as a
restorative justice circle process, that is exactly what it turned out to be.
That initial experience in 2016 led to Alissa and Dr. Levenson writing a
book on the use of VRJ for cases of sexual harm. It has also led to Alissa's
participation in and facilitation of VRJ processes with over 500 people
who have been convicted of sexual offenses.
In 2018, Alissa was asked to create an accountability circle for a man
who had committed a rape 20 years ago. Alissa asked Alexa if she would
be interested in participating and Alexa jumped at the opportunity. Alexa
talks about her experience of participating in this circle as profoundly
healing, unlike a criminal trial. She says that she had told her story many
times, but telling the story in the accountability circle was the most
250 AlissaR. Ackerman, The Importance of Connection, TED (Oct. 2018), https://perma.cc
/MF39-ZSFE.
important time she ever told it because it gave her the opportunity to tell
it to the person that needed to hear it the most-a person who had
committed rape. 1 Together, the authors have participated in and
facilitated VRJ processes in multiple states. 52
Models of Restorative in Cases of Sexual Harm

Over the last 25 years there has been a push for using restorative
justice in cases of sexual harm because it can theoretically address both
the justice and healing needs of survivors and people responsible for
causing sexual harm. 253 Restorative justice can be used for all forms of
sexual harm, from verbal harassment, to childhood sexual abuse and
rape.25 4 The cases the authors most often see in their practice are those
involving rape and sexual assault.2 55
251 Alissa Ackerman, Episode 13: Get Curious, BEYOND FEAR: THE SEX CRIMES PODCAST
(Nov. 11, 2020), https://perma.cc/2RF8-ZWNG.
252 The authors have facilitated and/or participated in VRJ processes
in California, Florida,
Minnesota, and Oregon. The authors have served as restorative justice facilitators in the com-
munity, in treatment settings, and in prisons.
253 See, e.g., Gordon Bazemore & Twila Hugley Earle, Balance in the Response to Family
Violence: Challenging Restorative Principles, in RESTORATIVE JUSTICE AND FAMILY
VIOLENCE 153, 177 (H. Strang & J. Barithwaite eds.); Donna Coker, EnhancingAutonomy for
Battered Women: Lessons from Navajo Peacemaking, 47 UCLA L. REV. 1 (1999); Kathleen
Daly, Professorial Lecture at the School of Criminology and Criminal Justice at Griffith Uni-
versity: Seeking Justice in the 21st Century: The Contested Politics of Race and Gender (Apr.
21, 2005); James Dignan & Michael Cavadino, Towards a Frameworkfor Conceptualizing
and Evaluating Models of Criminal Justice from a Victim's Perspective, 4 INT'L REV.
VICTIMOLOGY 153 (1996); Barbara Hudson, Restorative Justice: The Challenge ofSexual and
Racial Violence, 25 J. L. & SOC'Y 237 (1998); Barbara Hudson, Restorative Justice and Gen-
dered Violence: Diversion or Effective Justice?, 42 BRIT. J. CRIMINOLOGY 616 (2002); Mary
P. Koss, Blame, Shame, and Community: Justice Responses to Violence Against Women, 55
AM. PSYCH. 1332 (2000); Mary P. Koss et al., Expanding a Community's Justice Response to
Sex Crimes Through Advocacy, Prosecutorial, and PublicHealth Collaboration:Introducing
the RESTORE Program, 19 J. INTERPERSONAL VIOLENCE 1435 (2004); Mary P. Koss et al.,
Justice Responses to Sexual Assault: Lessons Learned and New Directions, in UNDOING
HARM: INTERNATIONAL PERSPECTIVES ON INTERVENTIONS FOR MEN WHO USE VIOLENCE
AGAINST WOMEN 37 (Mona Eliasson ed., 2004); Einat Peled et al., Choice and Empowerment
for Battered Women Who Stay: Toward a ConstructivistModel, 45 NAT'L ASS'N OF SOC.
WORKERS, INC. 9 (2000); Laureen Snider, Feminism, Punishment, and the Potential of Em-
powerment, in CRIMINOLOGY AT THE CROSSROADS: FEMINIST READINGS IN CRIME AND JUSTICE
246 (Kathleen Daly & Lisa Maher eds., 1998).
254 Annie Cossins, Restorative Justice and Child Sex Offenses, 48 BRIT. J. CRIMINOLOGY
359, 361 (2008). Cossins re-analyzes data from previous studies on child sexual abuse and
restorative justice and finds that there is not enough evidence to support restorative justice
options in cases where juveniles have committed a sexual offense against another child. In
practice, the authors do not use restorative justice with children who have been sexually
harmed but do take cases involving adult survivors of child sexual abuse.
In the authors' practice, most cases involve victim-offender

conferencing, which brings the person who was harmed into a safe, face-
to-face conversation with the person who caused the harm.256 In some
instances one or both people will bring a support person to participate
with them in the face-to-face meeting. 257 Each person works with a trained
facilitator ahead of time to address safety and justice needs, as well as
goals for the overall process. 258 The facilitator might engage other
professionals for assistance in the preparation process. 259 For example, a
facilitator might suggest that one or both people seek professional
counseling services to ensure they are psychologically and mentally
prepared for a restorative process. 260
Preparation for the person who caused harm might include
psychoeducational sessions to help them better understand their behavior
and emotions. 2 61 Similarly, preparation for the person who has been
harmed can include conversations about trauma responses, sessions to
practice telling the story, and asking and answering questions to best serve
all parties involved in the process. 262 Everything is planned to ensure that
both people feel safe and supported. Something as simple as a survivor
choosing where they will sit in a room prior to a process can make a
significant difference. 2 63 Simply put, by the time the two people come
together they are both fully prepared for the conference. Some restorative
processes involve one face-to-face meeting, while others will include
several sessions over a period of time. 2 64 These decisions are made with
participants as part of the decision-making process.
256 See also LORRAINE STUTZMAN AMSTUTZ, THE LITTLE BOOK OF VICTIM OFFENDER
CONFERENCING: BRINGING VICTIMS AND OFFENDERS TOGETHER IN DIALOGUE 127 (2009);

Clare McGlynn et al., Seeking Justicefor Survivors of Sexual Violence: Recognition, Voice,
and Consequences, in SEXUAL VIOLENCE AND RESTORATIVE JUSTICE: LEGAL, SOCIAL AND
THERAPEUTIC DIMENSIONS (Estelle Zinsstag & Marie Keenan eds., 2016). While others in the
field use terminology such as "victim-offender conferencing" or dialogue, the authors have
chosen to use "one-one-one conferencing" or dialogue. When referencing the work of others,
the authors use language consistent with their work. When the authors discuss their work, they
use "one-on-one conferencing."
257 Based on the authors' experience; McGlynn et al., supranote 256, at 2.
251 In some instances, the authors will refer clients for therapeutic or trauma based clinical
services prior to engaging in restorative processes. Facilitators, even those with extensive
training in trauma, are not licensed therapists.
260 Id.
261 Id.
262 Id.
263 Id.
264 Id.
Case Example: One-on-One Dialogue

In 2001, while attending a party, Jocelyn 11 was raped by Ronnie, an
acquaintance who promised to look after her once she had expressed
concern that she had had too much to drink. When speaking with Alissa,
Jocelyn talked about the physical struggle that ensued between her and
Ronnie. When she realized that he would continue to overpower her, she
determined that if she just pretended that she liked the experience it would
end far sooner than if she continued to fight him off. The next day, Jocelyn
confronted Ronnie, who denied all culpability. Almost two decades after
her rape, Jocelyn was still dealing with the physical and psychological
impacts. In early 2018, she reached out to Alissa to see if restorative
justice could be an option for her and Ronnie. She'd been back in touch
with him via social media and they both wanted to engage in a restorative
conversation. Alissa and Ronnie connected first via email and then by
phone. During their first phone conversation, Ronnie acknowledged that
he had raped Jocelyn and that he was ready to do whatever needed to be
done to bring her healing and closure.
Little pre-education was needed prior to the one-on-one dialogue
between Jocelyn and Ronnie. It was clear that Jocelyn had worked
through significant layers of her trauma in individual therapy. She
understood how the trauma from her rape continued to impact her daily,
but therapy alone did not alleviate the trauma symptoms she experienced.
With his therapist, Ronnie immediately began the work of processing the
shame and guilt he felt for the rape he committed. This is important to
point out because the feelings of shame and guilt only surfaced after
Jocelyn confronted Ronnie 20 years after the rape. He had stuffed his
actions so deep that they did not even cross his mind. This is a typical
response the authors see in clients with whom they work.
To ensure that Jocelyn felt safe during the process, she chose the
location where the one-on-one dialogue would take place in advance. On
the day of the dialogue, Ronnie arrived, followed by Alissa. The two had
time to process how Ronnie was feeling about seeing Jocelyn in person
for the first time since the rape took place. Alissa reassured Ronnie that a
restorative process is designed to bring healing to all parties and that she
would not have agreed to bring the two of them together unless she was
sure it was safe for them both. When Jocelyn arrived, Ronnie stood up to
greet her as a sign of respect. Alissa stood to greet Jocelyn as well and
then asked her where she would be most comfortable sitting for this
265 All case examples use pseudonyms when necessary and some facts are edited from
actual experiences in order to protect the anonymity and confidentiality of participants.
process. After Jocelyn chose the chair and the exact place in the room
where she felt the safest and in control, both Alissa and Ronnie sat down.
Jocelyn and Ronnie exhibited body language that communicated that
they were tense and uncomfortable. Nonetheless, Ronnie asked if he
could read a letter he had written to Jocelyn to begin the dialogue. Jocelyn
agreed and listened intently to Ronnie's admission of rape and full
accountability for his actions. As Ronnie spoke, Jocelyn's visceral tension
relaxed, and she seemed far more comfortable in her skin. Jocelyn then
had the opportunity to share all the ways that this rape had impacted her.
She spoke through tears as she described the acute manifestations of
trauma in the direct aftermath of the rape, and then detailed the more
chronic and insidious impacts on her physical and mental health over
time.
The formal dialogue lasted approximately three hours, at which point
Jocelyn and Ronnie asked Alissa to leave. There was more they wanted
to discuss without the formality of a facilitator. This speaks volumes
about the actual dialogue process, as Jocelyn felt safe enough to be alone
with the man who raped her years prior.
Here is what Jocelyn noted about the process: 266
My RJ experience may have been a little unconventional in that I
reached out to the person who sexually assaulted me . . .. [u]p
until that point, he had been in denial that he had raped me. He
apologized right away and we started exchanging messages and
preparing for a restorative justice session with Alissa.
As part of our preparation, we were tasked with coming up with
agreements about the meeting. After exchanging messages online,
we ended up agreeing to talk by phone. It was during one of our
phone conversations that he told me had talked to Alissa. He said,
"I told her 'I raped Jocelyn."' It was the first time I had heard
those words. I think many survivors have the experience of
knowing they were raped and not having anyone be accountable,
which is crazy-making. I often felt like I was lost in my thoughts
about the rape and was worried that I had somehow made it up.
Having him admit that he knew it was rape and say that it
happened freed me from the self-doubt I had been experiencing
for twenty years.
The work we did to prepare for the restorative justice session and
the meeting itself was both intense and powerful. Coming face to
face with the person who hurt me all those years ago and hearing

him say he was sorry and be accountable for his actions, shifted
things for me. A few months after we had met up for our meeting,
I realized that I no longer felt like my identity was tied up in my
experience of the rape. He had apologized and demonstrated to
me that he was actively making changes in his life. The sting of
the encounter (many years ago) had dissipated. There was simply
nothing left for my psyche to hold onto or process anymore. The
experience had been validated and he had taken responsibility. I
was free of the guilt that had been swirling in my head for two
decades about all the things I could have or should have done
differently. I finally got it. It wasn't my fault.
Ronnie wrote a reflection as well 267 :
I've been married for 14 incredible years, I have two beautiful
children, and I raped someone 20 years ago. Confronting my past
sexual transgressions wasn't just about how the survivor would
heal or how I dealt with my emotions. It came, and still comes,
with an incredible burden that I placed on my wife and children.
I'm one of a very large group of males who have committed
sexual assault and rape and buried it as deep as I could.
In 2018, three days before the Super Bowl, the survivor reached
out to me on Facebook. I knew she was going to reach out at some
point because she confronted me about the rape the day after it
happened. Back then, I was a typical adolescent male, and like
many men in society today, I denied all culpability. As soon as
she reached out, I did a little research and quickly realized the
impact that I had on her all this time.
I did it, I raped her. It was a fact now. For the next few months, I
felt like I was walking around with a jersey that said "rapist" on
the back.
After the survivor reached out to me, I knew I had to confront it.
I felt compelled to reach out and apologize. There was this utter
disgust in my stomach that I could not bury. I didn't know what
would happen at that stage, but I couldn't live with myself
knowing exactly how she felt and still denying it occurred like I
did 20 years ago.
I remember exactly what I was doing when I received that
Facebook message. I was at a burrito joint picking up some food
for my children and I did everything I could not to show my
267 ACKERMAN & LEVENSON, supra note 195, at 9-11.

children my emotions. As soon as I got home, I responded and

apologized to the survivor. Later that night my wife came home,
and I immediately told her what I had done 20 years before. What
she did next was incredible.
She grabbed my face, looked me in the eyes, and said, "I love
you." I cried for a long time and she supported me, despite me
having done something as damaging as rape.
Both the survivor and my wife have incredible hearts. They
believe in second chances and that good people make mistakes.
Absolutely horrific mistakes. Yet, we have to learn from our past
transgressions if we are going to try to make a better world.
Within a few weeks, we began working on a target date for a
restorative justice session. Now I went from feeling sad and
horrible to very scared. What would happen to my children? How
would this affect my wife? Forget how I would be affected, there
are all other people who have also become victims.
I think some people might not understand what restorative justice
means. It's not necessarily a public outing of the perpetrator. It
can absolutely be done in a confidential setting if the survivor
chooses it to be that way. Remember, the survivor has total
control here on how this goes. I lost that choice when I stole her
ability to choose.
I was compelled to make the leap to start this process because I
knew what I did was wrong. That's the first step a perpetrator
must do. I didn't know what would transpire, but I knew I had to
focus on doing the right thing. One might ask, "Why didn't I reach
out to her earlier?" I buried it, and I didn't want to confront it. One
thing the survivor said to me was that she was sad that I never
reached out AND she was glad that she could do it when she was
ready.
This journey isn't over for us. I still think about the survivor every
day, definitely more often than I have in the last 20 years. I still
feel like I owe the survivor so much. The restorative justice
process is definitely for the survivor, but incredibly it is helping
me with my own healing.
I've really been focused on doing the right thing. I don't know
what will happen in a year, 10 years, or 20 years, but I do know
that there is room for healing and that I can make a difference in
society by focusing on doing what's right.
Another restorative process that can be used in cases of sexual harm

is known as a circle process. Here, people with a vested interest in a
particular case or issue come together to share their concerns and
perspectives. 268 Circle processes might involve family members who have
come together after the disclosure of sexual harm within the family. It
could include a group of friends who did not believe a survivor's
disclosure. Similarly, it might involve someone who caused harm, the
person they harmed, and a group of support people. In some instances, a
restorative process might begin as a one-on-one face-to-face encounter
that leads to a larger circle process in time. In a circle process each person
is considered an equal. Each person is granted the opportunity to answer
questions designed by the facilitator without interruption from other
participants. Such a process allows for better listening and understanding.
Finally, VRJ can involve both face-to-face victim-offender
conferences and circle processes that allow people to participate in ways
that are detached from their own specific cases of harm.2 69 For instance,
a survivor of sexual harm may be interested in participating but has lost
contact with or does not know the person who harmed them. The person
who caused harm may be unwilling to participate or they may be
deceased. People who have committed a sexual offense may want to be
accountable for their behavior, but do not know how to reach out to the
person they harmed.270 If they have been charged or convicted of a sexual
offense, they may be legally prohibited from contacting the person they
harmed. VRJ adheres to the same values and frameworks as traditional
restorative justice processes; the only difference is that the people
participating in the process do not know one another. VRJ can be used in
settings that are not ideal for traditional restorative justice.
The restorative justice process with which Alissa initially engaged
was a VRJ session that ultimately led to the creation of the VRJ model for
healing from sexual violence. 27 1 VRJ can be used in institutional settings,
as well. 272
268 See generally KAY PRANIS, THE LITTLE BOOK OF CIRCLE PROCESSES: A NEW/OLD
APPROACH TO PEACEMAKING (2005).
Based on the authors' experiences.
269
270 Based on the authors' experiences. In most instances when the authors engage in re-
storative processes, they will not reach out to a survivor on behalf of someone who caused
harm. Restorative justice should be survivor driven.
271 See ACKERMAN & LEVENSON, supra note 195, at vii-viii.
272 The authors have participated in and facilitated VRJ sessions in the California prison
system with individuals serving life sentences.

Case Example: VRJ

By the time Amelia was 21 she had experienced sexual harm at the
hands of multiple people. Her abuse began at the age of eight when she
was molested by a close family friend. At 16, Amelia was raped at a party
by someone she thought was a friend and at 21 she experienced date rape.
The multiple experiences of sexual violence caused significant mental
health concerns for Amelia, which were compounded by the way she was
dismissed by police when she reported the rape that occurred when she
was 16. When Amelia contacted Alissa, she felt broken but was interested
in learning more about the restorative justice process. She was
considering participating in a restorative process, but under no
circumstances did she want to participate with any of the individuals who
had perpetrated sexual harm against her. This is when Alissa suggested
that VRJ might be a good option.
As one accountability measure offered in some cases, Alissa asks
people who have perpetrated sexual harm if they would be willing to give
back by participating as proxies in cases where a survivor wants to
participate but cannot or will not do so with the person who directly
harmed them. Alissa chose Dan, someone who had perpetrated a date
rape, to fill this role. As Dan was familiar with the process, there was no
pre-conferencing work that needed to be completed with him prior to the
circle process.
For Amelia, however, there was significant pre-education that
occurred prior to the VRJ process. Amelia had questions about why she
had experienced sexual harm on multiple occasions and wanted to better
understand trauma responses, including why her body reacted as it did
during her experiences of sexual harm and why she continued to
experience body triggers. These conversations happened prior to the VRJ
session. Amelia decided that she wanted to have the actual process occur
in an online format, and that she wanted to have a support person with her
throughout the dialogue. As this was a vicarious process, there were few
accountability options Amelia could ask for. An additional conversation
with Alissa helped her to determine what she was looking to accomplish
in the session.
Amelia wanted to hear someone take responsibility for the harm they
had caused, including a discussion of the steps they had taken to be
accountable. She wanted to know what went through Dan's mind leading
up to and during the rape he perpetrated. Finally, she wanted to hear
directly from the mouth of someone who had committed an act that was
similar to what she experienced explain that what happened to her was
not her fault. Each of these goals were accomplished during a two-hour,
online VRJ process. In addition, Amelia felt empowered because she was
able to impart some important knowledge to Dan that he had not

considered. In follow up, Amelia was satisfied with the process and felt
that it contributed to an overall improvement in her mental health and the
way she thought about her experience of date rape.
Is Restorative Justicefor Sexual Harm Effective?

Studies on the effectiveness for restorative justice in cases of sexual
harm have found generally positive results. 273 However, these results are
confounded by the fact that full scale evaluation studies have not been
undertaken. 274 Still, some studies offer promising results. For example, an
evaluation of 22 cases that were referred to Project RESTORE, found that
participation decreased rates of PTSD in survivors and that survivors who
participated in the process were satisfied with the outcome.2 75
One case study of an adult survivor of childhood sexual abuse and
rape by a family member found that the restorative justice process helped
her to feel empowered and provided a turning point in her healing
process. 276 Another study noted that restorative processes are less
victimizing for survivors as compared to traditional criminal legal
processes.2" One study comparing youth who went through a formal
adjudication process with those who went through a restorative process
found that those who went through a restorative process had lower rates
of re-offending. 278 While some studies have addressed one aspect of
effectiveness, such as recidivism or victim satisfaction, there remains a
dearth of systematic program evaluations to assess the true effectiveness
and impact of restorative justice in cases of sexual harm.
Due to the lack of research on its effectiveness, scholars have raised
several concerns about restorative processes in cases of sexual harm.279
273 See Marie Keenan & Estelle Zinsstag, Restorative Justice and Sexual Offenses: Can
"ChangingLenses" Be Appropriate in this Case Too?, 97 J. CRIMINOLOGY & PENAL REFORM

93, 100 (2014).
274 See Gang et al., supra note 182, at 2.
275 See Mary P. Koss, The RESTORE Program ofRestorative Justicefor Sex Crimes: Vi-
sion, Process, and Outcomes, 29 J. INTERPERSONAL VIOLENCE 1623, 1623-60 (2014).
276 See generally Clare McGlynn et al., 'I Just Wanted Him to HearMe': Sexual Violence
and the Possibilitiesof Restorative Justice, 39 J. L. & SOC'Y 213 (2012). While the use of
restorative justice in cases of sexual violence is controversial, the results of this exploratory
study, while tentative, provide an opening to consider the possibilities of restorative justice in
cases of sexual violence.
277 See Kathleen Daly, RestorativeJustice and Sexual Assault: An Archival Study of Court
and Conference Cases, 46 BRIT. J. CRIMINOLOGY 334, 338 (2006).
278 Kathleen Daly et al., Youth Sex Offending, Recidivism and Restorative Justice: Com-
paring Court and Conferences Cases, 26 AUSTL. & N.Z. J. CRIMINOLOGY 241, 255 (2013).
279 See Daly, supra note 278, at 350; see also Kathleen Daly & Sarah Curtis-Fawley, Re-
storativeJusticefor Victims of Sexual Assault: Courtor Conference?, in GENDER AND CRIME:

One concern is that restorative justice might be used to restore

relationships between people that only ever existed as an opportunity for
one person to exploit the other. 280 Others argue that harm might be
perceived as less serious than it actually is if it is adjudicated outside of a
formal criminal legal process. 281 Still others caution about the
misappropriation of the word justice. 2 2 Survivors' needs may include
both retributive and restorative factors and many survivors are not
concerned about rebuilding a personal relationship with the person who
harmed them. 28 3
Discourse surrounding this topic continues to grow and change.
Because the empirical literature remains lacking, claims about restorative
justice in cases of sexual harm are either overly positive or incredibly
pessimistic. 2 84 As practitioners and researchers, the authors note that
restorative justice cannot, and perhaps should not, be the first or only step
toward meeting the needs of people impacted by sexual harm, but they
see promise in it as a tool for those who are interested. Restorative justice
has the potential to fill the needs of all people impacted by sexual harm,
but more research is needed to ensure that those needs are met while
balancing risk. 28 5
PATTERNS OF VICTIMIZATION AND OFFENDING 230, 334 (Karen Heimer & Candace
Kruttschnitt eds., 2006); see generally Kathleen Daly & Dannielle Wade, In-Depth Study of
Sexual Assault and Family Violence Cases, PartII: Sibling Sexual Assault, Other Sexual As-
sault, and Youth-Parent Assault, S. AUSTL. JUV. JUST. AND CRIM. JUST. RSCH. ON
CONFERENCING AND SENT'G (2012); Kathleen Daly et al., In-Depth Study of Sexual Assault
and Family Violence Cases, S. AUSTL. JUV. JUST. AND CRIM. JUST. RSCH. ON CONFERENCING
AND SENT'G (2007); SHIRLEY JULICH ET AL., AN EXPLORATORY STUDY OF RESTORATIVE JUST.
AND SEXUAL VIOLENCE (2010); McGlynn et al., supra note 277; Clare McGlynn et al., Seeking
Justice for Survivors of Sexual Violence: Recognition, Voice and Consequences, in SEXUAL
VIOLENCE AND RESTORATIVE JUSTICE: LEGAL, SOCIAL AND THERAPEUTIC DIMENSIONS (Marie
Keenan & Estelle Zinsstag eds., 2016).
280 See Cossins, supra note 254, at 365.
281 See Sarah Curtis-Fawley & Kathleen Daly, GenderedViolence andRestorativeJustice:
The Views of Victim Advocates, 11 VIOLENCE AGAINST WOMEN 603, 607-08 (2005).
282 See Herman, supra note 19, at 597-99 (finding that survivor's views of justice do not
fit well into either retributive or restorative justice models).

283 See Herman, supra note 19, at 597.
284 See ACKERMAN & LEVENSON, supra note 195, at 15.
285 See Curtis-Fawley & Daly, supra note 280, at 632. See also Kathleen Daly, Setting the
Record Straight and a Callfor Radical Change: A Reply to Annie Cossins on Restorative
Justice and Child Sex Offenses,' 48 BRIT. J. CRIMINOLOGY 557, 563 (2008); Kathleen Daly,
Seeking Justice in the 21st Century: Towards an IntersectionalPolitics of Justice, 11 SOCIO.
CRIME, L., & DEVIANCE 3 (2008); Kathleen Daly & Julie Stubbs, Feminist Engagementwith
Restorative Justice, 10 THEORETICAL CRIMINOLOGY 9, 24 (2006); SHIRLEY JULICH ET AL.,
PROJECT RESTORE AN EXPLORATORY STUDY OF RESTORATIVE JUSTICE AND SEXUAL VIOLENCE
(Auckland University 2010); Mary P. Koss, Karen J. Bachar & C. Quince Hopkins, Restora-
tive Justicefor Sexual Violence: RepairingVictims Building Community, andHolding Offend-
The Limits of Restorative Justice and Sexual Harm

One reason for the burgeoning restorative justice movement in the
United States is the systemic racism inherent in the criminal legal system.
Disproportionate minority impact often begins in zero-tolerance policies
in schools that lead to the school-to-prison pipeline and can be seen
throughout every criminal legal policy, process, and practice from police
contact to sentencing. 286 Scholars who write about restorative justice
acknowledge the systemic racism within the criminal legal system. 2 87
Restorative justice practitioners were hopeful that diverting cases away
from the criminal legal system could stymie disproportionate minority
presence, especially in the juvenile justice system. 288
Non-profit organizations that focus on restorative and racial justice
are paving the way for better and more equitable ways of addressing
harm. 289 Still, the insidious impacts of systemic racism and white
supremacy are perpetuated in current restorative practices. 290
ers Accountable, 989 ANNALS N.Y. ACAD. SCIs. 384 (2003); Mary P. Koss, Expanding a Com-
munity's Justice Response to Sex Crimes Through Advocacy, Prosecutorial,and PublicHealth
CollaborationIntroducing the RESTORE Program, 19 J. INTERPERSONAL VIOLENCE 1435
(2004); McGlynn, supra note 68, at 825; McGlynn et al., supra note 275.
286 There is an existing body of literature that focuses on disproportionate presence of
Black and Brown people and systemic racism in the United States' criminal legal system. See
MICHELLE ALEXANDER, THE NEW JIM CROW: MASS INCARCERATION IN THE AGE OF COLOR
BLINDNESS 16 (2012).
287 Howard Zehr is known as the father of modern restorative justice. His updated and
revised The Little Book on Restorative Justice acknowledges systemic racism and questions
whether we have done enough within the field of restorative justice to not perpetuate the prob-
lems we see within the criminal legal system. ZEHR, supranote 146, at 14. Similarly, The Little
Book ofRestorative Justicefor Sexual Abuse makes a similar acknowledgement. OUDSHOORN
ET AL., supra note 129, at 5.
288 See TREVOR FRONIUS ET AL., WESTED JUST. & PREVENTION RSCH. CTR., RESTORATIVE
JUSTICE IN U.S. SCHOOLS: AN UPDATED RESEARCH REVIEW 9, 19 (2019).
289 Common Justice, based in New York City, and Impact Justice, based in Oakland Cali-
fornia, are two such organizations. Common Justice is the only organization to focus on com-
munity-based solutions to violent felonies in adult courts using an equity lens to address racial
inequities. Their website states, "Racial inequity drives violence. That means that any strategy
to advance safety must advance equity as well." About Common Justice, COMMON JUST.,
https://perma.cc/Y9VK-UCGW (last visited Jan. 23, 2022). Danielle Sered, the executive di-
rector of Common Justice, is the author of Until We Reckon which grapples with dealing with
violence from an abolitionist perspective. DANIELLE SERED, UNTIL WE RECKON: VIOLENCE,
MASS INCARCERATION, AND A ROAD TO REPAIR (2021). The Restorative Justice Project at Im-
pact Justice is the only program of its kind to partner with local communities across the coun-
try to offer technical assistance and training to address harm using pre-charge diversion pro-
grams. Restorative Justice Project: Partneringwith Communities to Address Harm Through
Dialogue, IMPACT JUST., https://perma.cc/S6YM-5DAH (last visited Jan. 23, 2022).
290 A new edited book, ColorizingRestorative Justice: Voicing Our Realities, was released
in 2020. This book highlights the experience of non-White restorative justice practitioners and
scholars. The twenty authors collectively and individually call out the contradiction between
Organizations and individuals who practice restorative justice and hold

the power to facilitate change do not always represent the marginalized
people for whom traditional legal practices cause the most harm.29 1
Acknowledging the problem is not enough. Making restorative justice
safe and equitable for all means doing the work necessary to operate with
a race-conscious lens. 292
Facilitators must be skilled in their practice, culturally competent,
and aware. This remains true for organizations and individuals who focus
on restorative justice in cases of sexual harm. Even a narrow restorative
justice focus requires facilitators and organizational leaders to be
committed to anti-racism. It requires that White practitioners
acknowledge White supremacy and their White privilege. Until
restorative justice practitioners contend with issues of racism and White
supremacy, we limit our ability to make actual change.
Few practitioners or restorative justice programs take cases
involving sexual harm. As the movement has grown, there has been a call
for more practitioners who have the capacity and expertise to effectively
handle this type of caseload. This creates two different concerns. The first
concern involves the use of restorative justice in conjunction with the
criminal legal system. The second involves the lack of appropriate skills
and expertise for facilitators to take on cases of sexual harm.
With newly elected district attorneys in multiple jurisdictions whose
platforms involve restorative justice and criminal justice reform, there is
renewed hope for change. 293 However, concerns remain that their
restorative practices, the oppressive systems of Western societies created by colonizers by

great harm to Indigenous and First Nations People, and White settler colleagues who do not
understand these realities. See Sharon Goens-Bradley, Breaking Racism 's Insidious Grip on
Restorative Practices: A Call to White Action, in COLORIZING RESTORATIVE JUSTICE: VOICING
OUR REALITIES 37-46 (Edward C. Valandra & Waijbli Waphiha Hoksila eds., 2020). Fania
Davis writes that the restorative justice movement risks losing relevance if it does not address
racism, systemic racism, and white supremacy. FANIA DAVIS, THE LITTLE BOOK ON RACE AND
RESTORATIVE JUSTICE: BLACK LIVES, HEALING, AND U.S. SOCIAL TRANSFORMATION 37 (2019).
291 SHARON GOENS-BRADLEY, Breaking Racism's Insidious Grip on Restorative Prac-
tices: A Call to White Action, in COLORIZING RESTORATIVE JUSTICE: VOICING OUR REALITIES,
supra note 291, at 37-46.
292 See id.
293 See, for example, the elections of Eric Gonzalez in Brooklyn, George Gasc6n in Los
Angeles, Rachael Rollins in Suffolk County, Chesa Boudin in San Francisco, and Larry Kras-
ner in Philadelphia, to name a few. See Justice 2020: An Action Plan for Brooklyn, ERIC
GONZALEZ, BROOKLYN DIST. ATT'Y'S OFF. (2020), https://perma.cc/MJS3-RDFT; George
Gascon, Special Directive 20-14, L.A. CNTY. DIST. ATT'Y'S OFF. (Dec. 7, 2020),
https://perma.cc/KWK4-LA8M; Meet District Attorney Rollins, SUFFOLK COUNTY DIST.
ATT'Y (2019), https://perma.cc/7E66-EPJ6; About the Office, S.F. DISTRICT ATT'Y,
https://perma.cc/4BYM-N5UX / (last visited Jan. 23, 2022); Larry Krasner, Philadelphia DA
Larry Krasner 's Revolutionary Memo (Feb. 15, 2018), https://perma.cc/8QEF-FT26.
platforms and visions will not actually come to fruition. Similarly,

criminal justice reform and diversion options rarely include people who
have been convicted of sexual offenses.29 4 The authors fear that if and
when progressive District Attorney offices are willing to use restorative
options in cases of sexual offenses, that there will still be a racial
component to how decisions are made. Namely, the authors are concerned
that White people who have been charged with sexual offenses will be
offered restorative justice, but people of color and other marginalized
people will still be funneled through the criminal legal process.
As the call for restorative justice in cases of sexual harm increases,
there is a critical need for facilitators who have the expertise and
experience to take these cases. Simply put, sexual harm cases are
different. They require a nuanced understanding of the consequences of
sexual trauma, as well as the etiology of sexual offending. The authors
are concerned that as the field grows, facilitators will be ill-equipped to
take these cases. This will either lead to individuals seeking restorative
service having few actual options available to them or facilitators offering
services that they are not equipped to offer.
Finally, as Howard Zehr explains, restorative justice is not a
panacea.29 5 There are some people for whom restorative justice will never
be the right option. 296 This is true both for people who have experienced
sexual harm and those who have perpetrated it. People must be ready for
the process, and some might not have the capacity with which to do so.
We acknowledge that while the literature is clear that most people who
sexually harm will not reoffend, there remains a small group of
individuals who will continue to cause harm. As a society we have an
obligation to protect people from that continued harm. The authors
believe that current incarceration practices must be abolished. They also
acknowledge that incapacitation may be necessary in some instances.
294 Even the most progressive prosecutorial offices in the nation have limitations to restor-
ative justice when it comes to sex offenses. To illustrate, instead of restorative approaches to
sex offenses, the goal in the Brooklyn District Attorney's Justice 2020 plan is to, "[e]nhance
prosecution of cases of gender-based violence, including acquaintance rape and sexual assault
cases." ERIC GONZALEZ, BROOKLYN DIST. ATT'Y'S OFF., supra note 293, at 35.
295 See ZEHR, supra note 146, at 14.
Based on the authors' experience. There have been cases where the authors have ceased
296
working with clients who have harmed because they were not progressing in taking true ac-
countability for their behavior. Similarly, some people who have experienced harm will not
be ready for a restorative process. Some individuals are oriented toward retributive justice.
VII. TOWARD A RESTORATIVE FUTURE

Current criminal legal processes and post-conviction policies do not
address the needs of individuals impacted by sexual harm.2 97 Overall,
survivors do not feel like their justice or healing needs are met and the
root causes of sexual harm are not addressed. 298 Despite the best of
intentions, current approaches do not provide meaningful or helpful
outcomes to those directly impacted by sexual harm. 29 9 Furthermore,
these efforts have had little effect on preventing future acts of sexual
harm.300 Overall, survivors of sexual harm support the notion that they
want meaningful outcomes and accountability measures for those who
perpetrate harm against them.301 Restorative justice offers the potential to
meet these needs.
Building a restorative approach that holistically addresses sexual
harm requires that it be culturally responsive, trauma-informed, survivor-
centered, and evidence-based. Culturally responsive facilitators and
programs acknowledge and address their privilege. They understand and
value the knowledge and lived experiences of the people with whom they
work.302 They recognize and respect that their expertise is not a substitute
for listening to the needs of the people they serve.
A trauma-informed approach to restorative justice is imperative for
any practice or program related to sexual harm. The consequences of
trauma are profound.303 They impact interactions and experiences in ways
that people might not be aware of 304 For restorative processes to be
effective, facilitators must utilize trauma-informed principles that address
the psychological, neurological, and physical needs of clients. It requires
active listening and stellar communication skills. Being trauma-informed
means having empathy and compassion for people, even when they have
297 See Campbell, supra note 26, at 31; Rachel Kate Bandy, The Impact of Sex Offender
Policies on Victims, in SEX OFFENDER LAWS: FAILED POLICIES, NEW DIRECTIONS, supra note
73, at 358-79.
298 See generally Mary P. Koss, Restoring Rape Survivors: Justice, Advocacy, and a Call
to Action, 1087 ANNALS N.Y. ACAD. Scis. 206 (2006). The article highlights that individuals
who have experienced rape feel that their legal needs are not met due to justice system issues
such as attrition, retraumatization, and disparate treatment across gender, class, and ethnic
lines. Empirical data presented in the article supports each issue and concludes that the current
justice options are inadequate.
299 See id.
300 See Spohn & Tellis, supra note 38, at 170.
301 See McGlynn & Westmarland, supra note 69, at 186.
302 See Tarana Burke & Brent Brown, Introduction to YOU ARE YOUR BEST THING:
VULNERABILITY, SHAME RESILIENCE, AND THE BLACK EXPERIENCE i, xvii (Tarana Burke
&
Brent Brown eds., 2021).

303 See generally VAN DER KOLK, supra note 152.
304 See id. at 62.
behaved in ways that are antithetical to one's own moral compass and
values.
Restorative processes are, by their inherent nature, survivor-
centered. This means that the safety needs of the person who has been
harmed must be addressed first and must be prioritized throughout the
process. This includes simple things including where the survivor will sit,
where the process will occur, and who will speak first. It also includes
discussions about intended outcomes and accountability measures. Being
survivor-centered puts the person who was harmed in the driver's seat.
They have control over the timeline of the process and input on all aspects
of the process. This does not mean that survivors can engage in behavior
that stigmatizes or punishes the person who caused harm. The restorative
process is centered on doing no harm. Survivors who engage in this
process understand that it must be safe for all parties for it to be effective.
Finally, restorative approaches to sexual harm must be evidence-
based. The evidence for restorative justice and sexual harm is limited but
growing. The available literature does suggest that people who engage in
restorative justice to address sexual harm are satisfied with the process.30 5
The evidence also suggests that restorative justice reduces rates of
reoffending and builds empathy.30 6 However, as restorative practices in
this field grow, it is imperative that practitioners, organizations, and
scholars alike make a commitment to evaluate the impact of their
programs effectively and honestly across multiple domains, including
participant satisfaction, follow through on accountability measures, and
rates of reoffending, among other factors
As experts in the field of sexual violence, restorative justice
practitioners who specialize in cases of sexual harm, and rape survivors
who have navigated restorative processes, the authors of this piece
wholeheartedly believe in the possibilities of a restorative approach to
sexual harm. This can only happen if everyone has a seat at the table.
Instead of an "us vs. them" mentality, we as a society must lean into
difficult dialogues, which requires stepping outside of comfort zones. A
culturally responsive, trauma-informed, evidence based, and survivor-
centered process is possible. A world restored from sexual harm is
possible.
305 See Umbreit et al., supranote 249, at 39.

306 See SHERMAN & STRANG, supra note 187, at 8, 14.

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IN TROD U CTION ........................................................................ 1

In 1999, both authors of this paper were raped. As a freshman in

i See Types of Sexual Violence, RAINN, https://perma.cc/J4WP-6WU5 (last visited Jan.

I. THE IMPACT OF THE CRIMINAL LEGAL SYSTEM ON THOSE WHO HAVE

Sexual violence is ubiquitous and impacts millions of people each

3 PREVENTING SEXUAL VIOLENCE, CTRS. FOR DISEASE CONTROL AND PREVENTION 1

Not Being Believed by Police, BMCWOMEN'SHEALTH, May 22, 2021, at 1, 1, https://perma.cc

Secondary Victimization: Underreporting, Police Interactions, and Case

Underreporting may be the result of many individual and societal

RELATIONSHIP THERAPY 159, 159 (2007).

Taska, supra note 19, at 337, 340.

VICTIMS 261, 261 (1999).

criminal prosecution . .. and prior negative interactions with social

33 See Patricia A. Washington, DisclosurePatterns of Black Female Sexual Assault Sur-

ual Violence, 18 VIOLENCE AGAINST WOMEN 169, 170 (2012).

Anders & F. Scott Christopher, A SociologicalModel ofRape Survivors'Decisions to Aid in

previously mentioned, many survivors choose not to report due to

46 See Washington, supra note 33, at 1274.

Needs Assessment, 20 J. INTERPERSONAL VIOLENCE 767, 770 (2005).

survivors whose assault falls outside of what is considered a "real rape"

53 DEP'T OF JUSTICE, IDENTIFYING AND PREVENTING GENDER BIAS IN LAW ENFORCEMENT

57 Spohn & Tellis, supra note 38, at 173.

ON ADULT SEXUAL ASSAULT VICTIMS 8 (2019), https://perma.cc/ZVP3-ZYQ9. Namian writes:

II. A BRIEF HISTORY OF POST-CONVICTION SEX CRIMES POLICIES

Modern day sex crimes policies typically refer to post-conviction

Offender Registration Act in 1994, which required every state to create

TRACKING, https://perma.cc/F888-SKZA (last visited Jan. 23, 2022).

the federal government, there was a lack of uniformity across registry

was approaching one million people on public registries. 97 These people

9? Andrew J. Harris et al., States' SORNA Implementation Journeys: Lessons Learned

because they create unnecessary obstacles (e.g., impeding employment,

BEHAV. 438, 442-43 (2013).

Sex Offender Registries, JUST. POL'Y J., Fall 2018, at 1, 5, https://perma.cc/HZH6-LNQH.

108 See JAN M. CHAIKEN & LAURIE ROBINSON, Foreword to LAWRENCE

United States, (Dec. 4, 2018), https://perma.cc/TAT5-Y2FX. Publishing of these statistics no

Kelly E. Morton-Bourgon, The Characteristicsof PersistentSexual Offenders: A Meta-Anal-

III. THE ETIOLOGY OF SEXUAL HARM

There is no single variable that explains why a person commits acts

attachments to others, limited social skills, and cognitive distortions

adulthood, including sexual harm. 140 In a large-scale study conducted in

140 Vincent J. Felitti et al., Relationship of ChildhoodAbuse and HouseholdDysfunction

little to address the underlying factors that lead to sexually harmful

IV. WHAT IS RESTORATIVE JUSTICE?

Whenever harm occurs a relationship is broken. This might not be

BODY IN THE HEALING OF TRAUMA (1st ed. 2014).

JUSTICE IN CANADA: A CRITICAL REVIEW OF NEEDS, RESPONSES AND RESTORATIVE JUSTICE

exist. 158 Some researchers estimate that formal restorative justice

means of harm-reduction and repair since the 1970s, it is primarily

How Is Restorative Justice Different?