When a sexual assault survivor walks into Alexandra Fulcher鈥檚 office at Occidental College, it鈥檚 the first step in a process fraught with consequences for both the survivor and the accused.
If Fulcher, the school鈥檚 Title IX director, launches an official investigation, the survivor could be asked to recount their trauma and cross-examined about it in a live hearing. Their alleged assaulter could be expelled.
But for the past year, survivors at Occidental have had another option. They can participate in a restorative justice conference with the person who harmed them, in which that person hears about the impact of their actions, takes responsibility and commits to a plan to help repair the harm 鈥� and prevent it from happening again.
The conferences draw on a long tradition of restorative justice, a philosophy that eschews punishment in favor of coming up with collective solutions to address violence and harm within a community.
A handful of California colleges have recently begun using restorative justice in cases of sexual assault and harassment, or are seriously considering it. And Fulcher said it鈥檚 a path that an increasing number of survivors at Occidental are choosing.
鈥淭his age group, at least at Oxy, is less interested in punitive options,鈥� she said.
One argument for making restorative justice available is that it may encourage more survivors to come forward. An overwhelming majority of survivors of campus sexual violence never file a report, and of those that do, few choose to pursue disciplinary action, said David Karp, director of the Center for Restorative Justice at the University of San Diego.
鈥淭his age group is less interested in punitive options.鈥�ALEXANDRA FULCHER, TITLE IX COORDINATOR, OCCIDENTAL COLLEGE
Title IX rules passed under the Trump administration made the formal complaint process less attractive for sexual assault survivors by requiring that they be cross-examined in live hearings, while at the same time giving schools more flexibility to pursue informal resolutions, Karp said. (The Biden administration has proposed new rules that would give colleges flexibility in whether to require cross-examination.)
Both of those changes helped spur interest in restorative justice, he said 鈥� including at his own campus, which is currently in its first year of offering restorative justice for Title IX cases.
鈥淚t seems pretty clear that there鈥檚 student demand and that Title IX administrators are really dissatisfied with the current options and would like to see the options expand,鈥� he said. 鈥淭here鈥檚 some legitimate worry about bad implementation or retraumatization and reasons why we should be careful.鈥�
A at California State University this year that led to the and numerous reports of campus administrators has focused attention on . The federal civil rights law, which turned 50 this year, protects students from sex-based discrimination in schools, including sexual violence. Meanwhile, an influential committee of lawmakers and judges earlier this month recommended that the state give all crime victims the right to .
Preparing a successful restorative justice conference 鈥� also known as a restorative justice circle 鈥� can take months, said Ren茅 Rivera, a facilitator for the Ahimsa Collective, a non-profit that conducts them for Occidental students.
First, both parties must agree to participate. The facilitators meet separately with both parties, making sure they have support systems in place 鈥� therapists, friends, family. The survivor decides what they want the outcome of the circle to be, and the person who acknowledges causing harm starts to face up to what they鈥檝e done. The accused is often asked to write a letter to the survivor, which may never be read to them, but can help the accused sort out their own feelings and take accountability before addressing the survivor face-to-face.
鈥淚t can take a long time to get to a place where everyone feels ready to meet each other and listen to each other,鈥� said Rivera. 鈥淲e as facilitators need to feel confident that there will not be more harm in bringing these two people together.鈥�
The circle, which usually lasts several hours, is not over until the accused has made an apology and the survivor is able to ask any questions of the accused. The person who鈥檚 caused the harm then takes the steps the survivor has requested, which could include things like getting therapy, or quitting an extracurricular activity so the survivor doesn鈥檛 have to run into them on campus.
Nationally, Rutgers University in New Jersey has been using restorative justice since 2016 鈥� first to treat less-serious incidents such as alcohol violations and later in Title IX cases. Amy Miele, the university鈥檚 associate director of student affairs, compliance and Title IX, vividly remembers the first restorative justice conference she organized in a sexual assault case.
The student who had been assaulted chose restorative justice because 鈥渟he did not want another man of color with a disciplinary record,鈥� Miele said. 鈥淪he said, 鈥業 want healing and justice and to be able to move on from this, I have a lot of questions I want answered, and I don鈥檛 feel comfortable going up to him on my own.鈥� 鈥�
The parties met in a conference room, Miele said, sitting around a table stocked with water bottles, tissues, drawing paper, pens, and snacks. But within a couple minutes, both students erupted with rage as the accused person grappled with the reality of what he had done, and the harmed person confronted her assaulter for the first time.
Miele and her team took a pause, allowing both students to calm down and giving them stress balls and water bottles to hold for the rest of the conference. Returning to the circle relaxed and prepared, the accused did something no one was expecting 鈥� he said, 鈥淚鈥檓 signing鈥�, apologized and accepted full responsibility for his actions.
鈥淚n that moment when he looked them in the eyes and said, 鈥業鈥檓 sorry,鈥� it was as if we could all breathe again, like the fog lifted,鈥� Miele said. The survivor told Miele the process had restored her faith in humanity, Miele said.
Evidence of success
While there鈥檚 little data available about the effectiveness of restorative justice in preventing future sexual assaults, some studies of youth convicted of other crimes have shown that those who participate in restorative justice conferences are .
In a survey gauging Rutgers鈥� students鈥� satisfaction with the restorative justice process, one student accused of assault said, 鈥淭he explorations of mine and (survivor鈥檚) perspectives was done very well. I was shocked at times to hear things I had never even thought of.鈥�
The conference 鈥渟howed me a game plan that I could follow to alleviate the harm done to (Complainant) and to better myself,鈥� another wrote.
Besides having the potential to increase reporting of sexual assaults, restorative justice is also a rejection of a racist criminal justice system in favor of something more equitable, said Domale Dube Keys, a former lecturer at the University of California Los Angeles who wrote a paper recommending that colleges offer restorative justice in Title IX cases.
鈥淎 restorative justice approach really is a way of recognizing that if we keep on this track of, 鈥榃e need to police, we need to do this law and order approach to sexual violence,鈥� it鈥檚 people of color and gender non-conforming people that are going to suffer,鈥� said Keys. 鈥淭hey are going to have less resources to go the legal route, less public support when it comes to believing their stories. It鈥檚 a way of recognizing that our system is flawed.鈥�
Some indigenous tribes have been practicing forms of restorative justice for generations. So when professors on Cal Poly Humboldt鈥檚 sexual assault prevention committee were considering using restorative justice for sexual misconduct, they took inspiration from the local Yurok tribe, whose members had experience using the practice to heal after domestic violence.
鈥淚n our community, the connections between us are so thick, when something bad happens to one of us, we all experience it in some way,鈥� Blythe George, a Yurok tribal member and sociology professor at UC Merced, said in a presentation at Cal Poly Humboldt in April.
When a tribal member is banished, she said, 鈥渢heir songs go with them, the teachings that their parents and grandparents took the time to teach them鈥� and that鈥檚 why it鈥檚 so important for us to have this restorative justice component, because we are actively reclaiming our people from a system that has done nothing but try to take us or kill us for the better part of centuries now.鈥�
Fair to survivors?
But critics of using restorative justice for campus sexual assault cases say that the power dynamics are different.
鈥淲hat makes restorative justice work is that it鈥檚 addressing a deep systemic and historical prejudice that a lot of wrongdoings happen because of systemic oppression,鈥� said Gabi Jeakle, a student at Loyola Marymount University who has worked to improve the university鈥檚 Title IX resources and is herself a survivor. But statistically speaking, she said, much sexual assault happens at the hands of historically privileged people. 鈥淚t鈥檚 oftentimes white men in fraternities harming women. It鈥檚 important to look at that context and say that鈥檚 not the same argument as someone who has been a victim of the school to prison pipeline.鈥�
Jeakle acknowledged that for the colleges that are trying this, survivors get to choose whether to pursue restorative justice or a traditional investigation. But when you鈥檝e recently undergone trauma, she said, 鈥渋t can be difficult to know what you need.鈥�
Federal law bars restorative justice in cases where a professor has assaulted or harassed a student. And potential power differentials between survivor and accused have also surfaced as an issue at Cal Poly Humboldt, where Maxwell Schnurer, a communications professor who chairs the university鈥檚 sexual assault prevention committee, said he鈥檚 concerned that restorative justice could lead to a 鈥渟urvivor being asked to take care of someone who had harmed them.鈥�
Committee members have received training in restorative justice but said they haven鈥檛 yet decided whether it could work on their campus.
鈥淵ou don鈥檛 want to forgive the entire institution because one individual apologizes.鈥�GABI JEAKLE, STUDENT AND SEXUAL ASSAULT SURVIVOR, LOYOLA MARYMOUNT UNIVERSITY
At UC Berkeley, restorative justice advocates were developing a separate pathway for handling cases outside the university鈥檚 Title IX office, said Julie Shackford-Bradley, director of the university鈥檚 Restorative Justice Center.
But they soon ran into a pitfall: A key tenet of restorative justice conferences is confidentiality. But most university employees 鈥� including those who would be running the conferences 鈥� are mandatory reporters, meaning that by law, they must tell the Title IX coordinator if they hear of any sexual harassment or assault happening on campus.
The center ended up scrapping the plan, Shackford-Bradley said, at least until the legal issues can be resolved.
Mandatory reporting has not been an issue at Occidental, said Fulcher, since any cases that are referred to the Ahimsa Collective have already been reported to the university鈥檚 Title IX office.
鈥淚n terms of the parties鈥� satisfaction with the (restorative justice) process, it is leaps and bounds more than our typical investigation and hearing process,鈥� Fulcher said 鈥� in part because restorative justice gives both survivor and respondent more control over the outcome.
Rivera, the facilitator, said that Occidental鈥檚 experiment with restorative justice shows that 鈥渢here鈥檚 an alternative (to punishment) and the alternative is to have a conversation that is actually as healing possible for both parties, and where the person who has caused the harm is gonna be treated as a full human being in that process.鈥�
鈥淭hat鈥檚 something that personally gives me a lot of hope. If we can do that on college campuses, it feels so much more possible to start to have those kinds of alternatives in other areas.鈥�
Even at California campuses where restorative justice conferences aren鈥檛 taking place, advocates for survivors are going beyond traditional Title IX investigations, finding ways to redress harm, involve the community and prevent future assaults.
UC Berkeley offers survivor circles, in which students can share their stories and build community with other sexual assault survivors.
And at Loyola Marymount, Jeakle is getting fraternities to contribute to a fund that supports survivors of sexual assault who need help with travel and medical expenses.
鈥淵ou don鈥檛 want to forgive the entire institution because one individual apologizes,鈥� she said. 鈥淎sking people to be part of a cultural shift is more important.鈥�
Taylor is a fellow with the , a collaboration between CalMatters and student journalists from across California. Mello is the network鈥檚 editor. This story and other higher education coverage are supported by the College Futures Foundation.