Restoration, Retribution, and Sexual Assault: The Value of Apologies

Abstract

The #MeToo and #TimesUp movements have cast new light on the alarming prevalence of sexual violence. They have ignited conversations about the harm that such offenses cause, the continued need for redress, and the ongoing battle for victims of sexual violence to be believed and obtain justice.

Despite increased public attention on sexual violence, the traditional criminal justice system does not address sufficiently sexual assault cases. Conviction rates are low; incarceration rates are lower. This reality undermines deterrence and results in a dearth of sexual offenders who receive morally sufficient punishment. Meanwhile, defendants hesitate to admit responsibility and engage in healing conversations with victims due to fears of liability, thereby impeding restoration and rehabilitation.

In light of these issues, some theorists have suggested replacing the criminal prosecution of sexual assault with alternative, diversionary models grounded in restorative justice. While these restorative programs have some merit, this Comment argues that this change is unlikely and, in any event, premature.

As an alternative solution, this Comment proposes learning from, and borrowing, a key component of restorative justice—its focus on apologies. Apologies for sexual assault provide numerous psychological benefits for both victims and offenders, may improve litigation outcomes, and facilitate both restorative and retributive justice. Therefore, this Comment proffers a new, narrowly tailored evidentiary rule to encourage apologies, and it defends its nuances. This rule would exclude from evidence apologies made by criminal and civil defendants accused of sexual assault under certain conditions. The goal, ultimately, is to facilitate restoration and the goals of criminal punishment, especially retributivism, while minimizing the negative impact on the truth-seeking process and continuing to encourage public and private accountability for sexual violence.

Keywords: evidence, sexual assault, sexual violence, criminal law, restorative justice, retributive justice, retributivism, apologies, apologize