The Devil Is in the Details: Exploring Restorative Justice As an Option for Campus Sexual Assault Responses Under Title IX
35 Pages Posted: 14 Feb 2019 Last revised: 4 Jun 2019
Date Written: 2018
On September 9, 2017, Secretary of Education Betsy DeVos formally rescinded a piece of Obama-era Title IX Guidance, a “Dear Colleague Letter” that had shaped colleges’ and universities’ responses to sexual violence on campus for over six years. In the Interim Guidance and Proposed Regulations that followed, Secretary DeVos made clear that schools could now consider using restorative justice practices—wherein offenders take responsibility for the harm they have caused and survivors are active in crafting the plan to help remediate that harm—in responding to sexual assault. This Article examines the history of Title IX, tracing it from the original language through the Obama-era guidance to Secretary DeVos’s recent actions. It also examines what restorative justice is, why schools’ use of it for claims of on-campus sexual harassment is so controversial, why survivors might prefer it to more traditional investigations or criminal complaints, and why it has perhaps surprising support from many feminists and progressive activists. Because the devil is in the details for a program like this, this Article also outlines what the critical elements of a successful program would look like, including the centrality of informed consent from survivors and the need for restorative justice to be just one of several remedies that survivors can choose from. One major obstacle to implementing a restorative justice program on campus is the possibility that statements made by offenders—including admissions of sexual assault—could be used against them at a later civil or criminal trial. This Article therefore proposes a new evidentiary rule designed to exclude those statements. Recognizing this as a move many policy makers would be hesitant to embrace for a variety of reasons, this Article also examines similar exclusionary rules—including medical apology laws, truth and reconciliation commissions, and statements made during Queen for a Day proffer sessions—to provide a historical and philosophical basis for such a rule. It also considers the practice of restricted reporting of sexual assault in the military to demonstrate another instance where policy makers decided the goal of providing survivor-directed services outweighed the goal of prosecuting all cases of sexual assault. Because restorative justice is only on the table in the first place if a survivor is interested in pursuing it, the evidentiary rule proposed here would help to provide another option to campus sexual assault survivors, an option that may provide benefits to their communities as well.
Keywords: Title IX, colleges, universities, sexual assault, restorative justice, offenders, survivors, remediate, Barack Obama, Betsy DeVos, exclusionary rules, evidentiary rules
JEL Classification: K10
Suggested Citation: Suggested Citation