Dispute Resolution Magazine - Winter 2019

#MeToo and Restorative Justice

Realizing restoration for victims and offenders

Lesley Wexler and Jennifer K. Robbennolt

The #MeToo movement has hastened a modern-day reckoning with sexual assault and sex discrimination. Claims of sexual misconduct have surfaced in all walks of life and disrupted business as usual in settings as disparate as Hollywood board rooms and Supreme Court confirmation hearing chambers. Some high-level and high-profile individuals who have been accused of wrongdoing have been fired or suspended, and many have resigned. Others have remained in their jobs or even ascended to positions of greater power.

When civil rights activist Tarana Burke founded Just Be Inc. and crafted the related Me Too concept more than a decade ago, before the days of pervasive social media and hashtag designations, she did not plan a worldwide campaign that would change the way individuals and companies deal with sexual misconduct in the workplace. Instead Burke, who worked with mostly poor women and girls of color who had suffered sexual violence, intended to create a nonprofit organization to provide resources for victims of sexual harassment and assault. It would, she hoped, offer opportunities for radical healing. In a 2017 interview, Burke described her multilayered vision of healing: victims use “Me Too” as a way of creating connections and sharing empathy; the community recognizes victims and their needs; perpetrators move toward discussions of accountability, transparency, and vulnerability; and everyone considers how “collectively, to start dismantling these systems that uphold and make space for sexual violence.”

Amid the discussion of how to address #MeToo claims, there have been calls – most publicly in actress Laura Dern’s Golden Globes acceptance speech – for the use of “restorative justice” to address the needs of both victims and harassers. But these calls have not been explicit about what sort of restoration is contemplated. Exactly what restorative justice might look like in Hollywood or any other setting remains unclear.

One possible interpretation of the phrase speaks exclusively to the “restoration,” the return as best as possible to the rightful, pre-incident state, of those who have experienced sexual harassment and assault. But a broader understanding of restorative justice focuses on not only the restoration and reintegration of victims but of wrongdoers – and also addresses the implications of the wrongdoing for the community as a whole.

Restorative justice processes share a number of core commitments, including participation of offenders and victims in the process; narration of the wrongful behavior and its effects; acknowledgement of the offense and acceptance of responsibility for it by the offender; joint efforts to find appropriate ways to repair the harm done; and reintegration of the offender into the broader community. How might these key components of restorative justice – including acknowledgement, responsibility-taking, harm repair, non-repetition, and reintegration – play out in the context of #MeToo? In this article, we begin to explore some of the insights of restorative justice in this context.

Acknowledgement. Those who are injured by someone, including those injured by sexual harassment and other forms of sexual violence, often want acknowledgment of their experiences, the specifics of the wrongful behavior, and how they were affected. Acknowledgement affirms the victim’s experience, can convey that the victim was not overreacting or to blame, and signals community support for the victim.

Failure to acknowledge the wrongful behavior is not only insulting but can result in further offense. Consider, for example, snowboarder Shaun White’s initial response to questions about a settled sexual harassment lawsuit, including a disparaging characterization of the event as “gossip.” His statement that “I am who I am, and I’m proud of who I am. And my friends . . .  love me and vouch for me. And I think that stands on its own,” did not acknowledge either the harm or the victim.

In similar ways, apologies that are conditional (“if I … ”), cast doubt on the consequences (“if anyone was offended”), or refer only generally to “actions” or “behavior” do not acknowledge the specific harmful behavior in question or demonstrate an understanding of its wrongfulness or effects. Actor Jeffrey Tambor, for example, responded to accusations of misconduct with the following statement: “I am deeply sorry if any action of mine was ever misinterpreted by anyone as being sexually aggressive or if I ever offended or hurt anyone.” This sort of vague apology, in addition to failing to clearly acknowledge the behavior or the harm, can also appear to fault the person who was harmed for being overly sensitive or misinterpreting what transpired.

Responsibility-taking. Many victims want offenders to go beyond acknowledgement, to accept responsibility for having caused harm. Responsibility-taking can be difficult even under the best of circumstances, with concerns for self-image, reputation, future employment, vulnerability, and potential legal consequences looming large.

But responsibility-taking is a central feature of restorative justice. Indeed, most restorative justice programs are specifically designed to be available only in cases in which the offender has acknowledged having engaged in the wrongful acts at issue. Responsibility-taking is also the central feature of apologies and is central to their potential.

As we have seen many times, some offenders accused of sexual misconduct are very quick to deny any wrongdoing – and many are even more reluctant to acknowledge exactly what they did. Take, for example, actor Kevin Spacey’s apology, which first denied any memory of sexual misconduct, then expressed remorse for deeply inappropriate behavior if it happened, and then seemingly deflected any responsibility by discussing the challenges of living as an openly gay man. While Chef Mario Batali claimed to accept responsibility, his fleeting and vague reference to his “many mistakes” was hardly better, though it was accompanied by a tasty cinnamon roll recipe. Contrast this with the apology given by television show writer Dan Harmon, which included a very specific acknowledgement of the variety of ways in which he had created a toxic work environment for his victim, including gaslighting and retaliation, and the ways in which it had affected her. If someone accused of sexual assault or sexual harassment cannot or will not acknowledge and take responsibility for his or her active, voluntary role in perpetrating abuse, restorative justice simply will not follow.

Harm repair. Restorative justice incorporates the notion that the offender should repair the harm caused by the wrongful behavior and contemplates dialogue and joint decision-making about how best to accomplish that repair. The notion of joint decision-making is complicated in the context of sexual assault and harassment. Take, for instance, agent Adam Venit’s request to actor and former NFL player Terry Crews, the man he assaulted, that “they talk[] in person to come together . . . and be an amazing force for positivity and change in our culture.” Crews was not comfortable with this proposal or even accepting Venit’s apology until six months later, when Venit took the additional step of resigning from his high-level position. While some victims may be comfortable with direct communication with their assaulter, others will not. Thus, when victims and perpetrators are willing to discuss repair, representatives and neutrals may be particularly valuable in facilitating mutual understanding.

One aspect of this repair is often financial compensation. Victims might look for money damages as concrete compensation for tangible economic losses, as acknowledgement of their experience, as evidence of responsibility-taking, or as reaffirmation of their self-worth.

Some victims of sexual misconduct might be hesitant to seek individual compensation, viewing money as incommensurate with the harm they have suffered. Others might be hesitant to claim compensation because of concerns about how they will be viewed – and critiqued – by others.  Take for example, the pre #MeToo criticisms of Andrea Constand, the former director of operations for the woman’s basketball team at Temple University, as a gold digger for seeking civil damages from comedian Bill Cosby or the widespread praise of musician Taylor Swift for seeking only symbolic and not monetary damages from her assaulter. Communities ought to be cognizant of these social pressures on victims. Expecting the self-sacrifice of victims, and in particular that of lower-status victims, and demanding that their interests extend only to protecting each other and not to seeking financial redress for their harm is part of the stereotyping and denial of their interests that fosters harassment and assault in the first place.

Other forms of repair are also appropriate. Apologies, for instance, can serve to repair some aspects of the harm. And community service, particularly if it relates to the underlying harm, can be a valuable effort toward repair.

Non-Repetition. Part of affirming the dignity and status of the harmed individual is taking steps to avoid perpetuating similar wrongdoing in the future. Victims are often motivated to take action against offenders, to seek restorative or other forms of “justice,” in the hope of preventing others from experiencing similar harm. Important, too, are efforts by those who enabled the wrongful conduct to take responsibility for their part in supporting or failing to prevent or stop the wrongful behavior and to forge systemic change.

But many of the statements we have seen from public figures accused of sexual harassment have failed to outline how their behavior will change in the future. Even those who acknowledge their past misdeeds seem to have little concrete to offer on this front. Moreover, vows to stop engaging in wrongful behavior must be more than promises. One risk is that offenders will be, in the words of Donna Coker, a professor at the University of Miami’s School of Law who specializes in domestic violence policy and law, “quick to apologize, slow to change.” While an apology may happen at a particular moment in time, the larger project of amends-making in which it is embedded is often an ongoing endeavor. Such an endeavor must include both non-repetition of the offender’s own behavior and evidence of how the offender will make helpful contributions to changing the structures and culture that enabled the bad behavior. Our colleague at the University of Illinois College of Law, Professor Jay Kesan, for example, has made such promises in the academic setting, acknowledging to his victims and the larger community the harms of his past actions, binding himself to specific norms of appropriate behavior, and promising to make positive contributions to the #MeToo conversation. Only time will tell the sincerity of such promises. As they say, the proof is in the pudding.

Redemption and reintegration. Another tenet of restorative justice is the reintegration of the offender back into the relevant community. The restorative justice notion of “earned redemption” anticipates both that offenders will be held accountable for their behavior and that they will be enabled to “earn their way back into the trust of the community.” Note, however, that reintegration has been somewhat controversial in the context of sexual violence and retaliation. Concerns for the reintegration of the victim who might have voluntarily or involuntarily excluded herself from the workplace or social community should be seen as particularly pressing. Actress Hilarie Burton, for instance, described how she “has refused to audition and refused to work for show runners she does not already know.” She explained that “[t]he fear of being forced into another one of these situations was crippling. I never wanted to be the lead female on any show ever, ever, ever again.” While a car thief or a burglar who is truly remorseful and truly understands his crime might be able to return to a job or be restored to a prior position, would we or should we say the same of those who have raped or assaulted, given the high personal toll they have exacted from their victims? While actor Bryan Cranston might speak for some in his willingness to see Harvey Weinstein restored if Weinstein were willing to do the work described above, others are less sure.

What is required for those called out by #MeToo to rebuild their moral and social identities may depend, in part, on the nature of their offense – its severity, intentionality, and pervasiveness. Attention to these nuances is important in order to avoid moral flattening, the temptation to conflate crimes and behaviors that are meaningfully different. But insufficient attention to building a foundation for redemption can cause efforts at reintegration or “comebacks” to fall flat. As actress and early Weinstein accuser Ashley Judd has noted, “There’s an appropriate sequence. Accountability, introspection, restitution, then redemption. You don’t get to skip the stages that lead to redemption.”

Finally, it is important to consider the role of forgiveness in reintegration.  Neither reintegration nor forgiveness must mean reinstatement to a former role or position or that a victim must reconcile with an offender. Despite the common refrain, “forgive and forget,” forgiveness does not imply forgetting. Indeed, remembering is crucial, essential so that offenders can learn and others can protect themselves as necessary. Finally, pressuring a victim to forgive can inflict additional harm, which for people who have been assaulted is particularly troublesome as it magnifies their original loss of agency. In claiming their autonomy, victims must be able to choose for themselves whether to forgive.

Of course, restorative justice is not the only approach to resolving #MeToo claims. Many victims might not seek justice at all or prefer only traditional retributive justice. We write not to undermine those choices, but because we believe the potential of restorative justice has been underexplored in discussions of #MeToo. It provides one among many valuable tools for a path forward.

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    Lesley Wexler and Jennifer K. Robbennolt

    Lesley Wexler is a Professor of law at University of Illinois College of Law. She can be reached at mlmwexler@illinois.eduJennifer K. Robbennolt is Alice Curtis Campbell Professor of Law and Professor of Psychology at the University of Illinois College of Law. She can be reached at jrobbenn@illinois.edu. This was adapted from the article #MeToo, Time’s Up, and Theories of Justice by Lesley Wexler, Jennifer K. Robbennolt, and Colleen Murphy, which will appear in a forthcoming issue of the Illinois Law Review, available at https://ssrn.com/abstract=3135442.