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TRANSFORMING CAMPUS CULTURE TO PREVENT RAPE: THE POSSIBILITY AND PROMISE OF RESTORATIVE JUSTICE AS A RESPONSE TO CAMPUS SEXUAL VIOLENCE

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Though feminists have long argued that rape is linked to sex discrimination,1 legal responses to rape tend to ignore the ways that social and cultural norms contribute to sexual violence. 2 One exception, however, exists in the context of federal antidiscrimination law under Title IX, which applies to colleges and universities that receive federal funds. Under the legal framework established by Title IX, rape constitutes a form of severe sexual harassment, to which educational institutions are legally obligated to respond.3 An institution’s failure to do so is considered evidence of sex discrimination and may subject it to both federal penalties and civil liability.4 Recently, this obligation was further strengthened by the passage of legislation that codifies particular aspects of what campus grievance processes for rape survivors must include and requires schools to take affirmative steps to transform campus culture to prevent rape.
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  T RANSFORMING C AMPUS C ULTURE TO P REVENT R  APE : THE P OSSIBILITY AND P ROMISE OF R  ESTORATIVE J USTICE AS A R  ESPONSE TO C AMPUS S EXUAL V IOLENCE   A LLETTA B RENNER  * I  NTRODUCTION  Though feminists have long argued that rape is linked to sex discrimination, 1  legal responses to rape tend to ignore the ways that social and cultural norms contribute to sexual violence. 2  One exception, however, exists in the context of federal anti-discrimination law under Title IX, which applies to colleges and universities that receive federal funds. Under the legal framework established by Title IX, rape constitutes a form of severe sexual harassment, to which educational institutions are legally obligated to respond. 3  An institution’s failure to do so is considered evidence of sex discrimination and may subject it to both federal penalties and civil liability. 4  Recently, this obligation was further strengthened by the passage of legislation that codifies particular aspects of what campus grievance processes for rape survivors must include and requires schools to * Harvard Law School, Class of 2014. 1   See generally S USAN   B ROWNMILLER  ,   A GAINST O UR W ILL  (1975) (arguing that rape is a product and tool of male domination); L ORENNE M.G.   C LARK &   D EBRA J.   L EWIS , R  APE :   T HE P RICE OF C OERCIVE S EXUALITY  (1977) (arguing that rape was an expression of perceived male entitlement to the control and use of female sexuality), 2   See Susan Estrich,  Rape , 95 Y ALE L.J. 1087 (1986) (arguing that the law of rape fails to protect women from acquaintance rape because it simultaneously considers the fact of social context, in that the victim and  perpetrator know each other, to imply consent while failing to account for how social context sets up the necessary conditions for sexual coercion); C ATHARINE M ACKINNON , W OMEN ’ S L IVES ,   M EN ’ S L AWS 240– 48   (2005)   (arguing that criminal law fails to account for power imbalances between victims and  perpetrators and that rather than using a consent standard, rape law should employ a standard of whether the sex was “wanted”). 3  Under Title IX, once an incident of campus rape has occurred, schools must “take immediate and appropriate steps to investigate or otherwise determine what occurred and take prompt and effective steps reasonably calculated to end any harassment, eliminate a hostile environment if one has been created, and  prevent harassment from occurring again.”  See U.S.   D EPARTMENT OF E DUCATION O FFICE FOR C IVIL R  IGHTS ,   R  EVISED S EXUAL H ARASSMENT G UIDANCE :   H ARASSMENT OF S TUDENTS BY S CHOOL E MPLOYEES ,   O THER S TUDENTS ,  OR T HIRD P ARTIES  2–4, 15 (2001). 4    Id.  Harvard Journal of Law and Gender 1 take affirmative steps to transform campus culture to prevent rape. 5  Despite this clear legal mandate, rape remains a serious and enduring problem at colleges and universities in the United States. Indeed, roughly one in five female students are victims of rape at some point in their post-secondary education. 6  If we add to this the substantial numbers of male 7  and transgender  8  students who experience sexual violence also, it is clear that the scope of the problem is huge. The overwhelming majority of these rapes are “acquaintance rapes”—nonconsensual sex between students who have some  pre-existing social relationship. 9  As these numbers indicate, many institutions fail to take adequate steps to respond to and prevent campus sexual violence. 10  In a related article,  Resisting Simple Dichotomies: Critiquing Narratives of Victims, Perpetrators, and Harm in Feminist Theories of Rape , 11  which was published in 5  Violence Against Women Reauthorization Act of 2013, P UB .   L.    N O . 113-14, Sec. 304, 127 Stat 54, 89–92 (2013) (codified at 20 U.S.C.A. § 1092). 6  According to the most comprehensive study available, roughly twenty to twenty five percent of women are raped at some point while in college. See B ONNIE S.   F ISHER  ,  ET AL .,   U.S.   D EP ' T OF J USTICE , T HE  S EXUAL  V ICTIMIZATION OF C OLLEGE W OMEN  10, 17 (2000). See also A MERICAN C OLLEGE H EALTH A SSOCIATION ,    N ATIONAL C OLLEGE H EALTH A SSESSMENT S PRING 2012   R  EFERENCE G ROUP E XECUTIVE S UMMARY  5 (2012) (confirming that approximately 3.5 percent of college women reported being raped in a 12-month period). 7   See  C HRISTOPHER P.   K  REBS ET AL .,   T HE C AMPUS S EXUAL A SSAULT S TUDY :   F INAL R  EPORT 5.5 (2007) (finding that 6.1 percent of male students were victims of completed or attempted sexual assault during college).  But see Mary E. Larimer, Amy R. Lydum, Britt K. Anderson, and Aaron P. Turner,  Male and  Female Recipients of Unwanted Sexual Contact in a College Student Sample: Prevalence Rates, Alcohol Use, and Depression Symptoms , 40 S EX R  OLES  295, 301–02, 305–06 (1999) (reporting findings of study where undergraduate males reported unwanted and coerced sexual activity at levels comparable to those of their female counterparts). 8   See Rebecca L. Stotzer, Violence Against Transgender People: A Review of United States Data , 14 A GGRESSION &   V IOLENT B EHAV . 170, 177–78 (2009) (surveying data and concluding that all transgender  persons have an especially high lifelong risk of multiple types and incidences of violence, particularly sexual violence).  9   See F ISHER  ,  supra note 6, at 17 (finding that more than ninety percent of female college rape victims know their attacker); Larimer,  supra note 7, at 305–06 (finding that coercive sex experienced by male students was perpetrated by other students, usually female). 10   See  Nancy Chi Cantalupo,  Burying Our Heads in the Sand: Lack of Knowledge, Knowledge Avoidance, and the Persistent Problem of Campus Peer Sexual Violence , 43 L OY .   U.   C HI .   L.J. 205, 210–24, 235–44 (2012) (discussing deficiencies in colleges’ and universities’ systems for responding to sexual violence and the way that inadequate enforcement of federal laws aimed at improving responses exacerbates the  problem). 11   Alletta Brenner,  Resisting Simple Dichotomies: Critiquing Narratives of Victims, Perpetrators, and  Harm in Feminist Theories of Rape , 36 Harv. J. L. & Gender 503 (2013).    Transforming Campus Culture to Prevent Rape 2 the Summer 2013 issue of the Harvard Journal of Law and Gender, I argued that feminist theories of rape tend to be imbued with dichotomous ways of thinking that limit both theoretical frameworks for understanding sexualized violence, and practical legal  proposals for how to better prevent and respond to it. In that article I argued feminists should adopt an intersectional view of such violence that treats it as a rupture in the  process of human recognition. This approach, which emphasizes the individualized effects of sexualized violence, attempts to draw attention to the ways that the construction and performance of identities can contribute to dehumanization and seeks solutions that help to re-humanize both victims and perpetrators. I concluded by arguing that a possible alternative to addressing sexualized violence may look like the emerging practice of restorative justice. This second article aims to translate the theoretical foundation offered in  Resisting Simple Dichotomies  into a concrete proposal for real-world practice. In many ways, college campuses offer a rich environment for developing radically new ways of thinking about and responding to rape. For, as much as rape is a particularly serious problem on campuses, it occurs within a social and institutional framework that offers profound  possibilities for the mobilization of social change. The starting point of this paper is the premise that campus grievance processes should be more survivor-oriented and equitable. Applying an intersectional view of how and why campus rape occurs, I argue that colleges and universities should seek to engage the broader student community in dialogue and utilize the grievance process as a means of both holding offenders accountable and preventing future rapes. Restorative justice offers one model for how schools might augment their campus grievance processes to  Harvard Journal of Law and Gender 3 respond to acquaintance rape cases to achieve these goals. Though a restorative justice approach may not be appropriate in every case, I argue that it may provide significant  benefits for some survivors and offenders, and help to fill the gaps between existing  preventative and remedial approaches. I  NADEQUACIES OF E XISTING C AMPUS G RIEVANCE P ROCESSES  The harm of rape is often articulated in terms of its disempowering and dehumanizing effects. 12  As one feminist scholar and rape survivor describes it: “Rape denies that you are a person, that you exist.” 13  Hence, the justice needs of rape survivors are integrally tied to validation and empowerment. 14  Research has shown that rape survivors often express the need “to tell their story, to be heard, have input into how to resolve the violation, receive answers to questions, observe offender remorse, and experience a justice process that counteracts isolation in the aftermath of the crime.” 15  Accordingly, a comprehensive, survivor-oriented approach to campus sexual violence has long been advocated. 16  In contrast, the grievance processes available to survivors of 12   See, e.g., L OUISE DU T OIT , A   P HILOSOPHICAL I  NVESTIGATION OF R  APE :   T HE M AKING AND U  NMAKING OF THE F EMININE S ELF 82 (2009) (“[H]er body swallows up her whole existence and its limits become the limits of her world; she becomes pure immanence, pure body and dead, objective fleshiness without a trace of subjectivity, transcendence or a will of her own. . . . Becoming an object in this way, means that the world she once inhabited as a subject is destroyed, and in its place she finds herself in a place or world that cannot be mastered or ordered but only endured.”). 13  Lynne N. Henderson, Review Essay, What Makes Rape a Crime? , 3 B ERKELEY W OMEN ’ S L.J. 193, 226 (1988) (emphasis omitted). 14   See J UDITH L EWIS H ERMAN ,   T RAUMA AND R  ECOVERY  133–34 (1997) (discussing the healing needs of sexual trauma survivors, with validation of experiences, empowerment and the ability to regain a sense of control being central). 15  Mary P. Koss,  Restoring Rape Survivors: Justice, Advocacy and a Call to Action , 1087 A  NNALS  N.Y.   A CAD .   S CI . 206, 209 (2006) [hereinafter Koss,  Restoring Rape Survivors ]. 16  Nancy Chi Cantalupo, Campus Violence: Understanding the Extraordinary Through the Ordinary , 35 J.C.   &   U.L. 613, 665–74 (2009) (describing wide agreement by relevant federal agencies, victim advocates and courts that “emulating or drawing from the criminal system in addressing cases of peer sexual violence in institutions is not helpful at best and damaging or not legally sufficient at worst” and that instead colleges and universities should implement “policies, procedures, and practices [that] privilege a survivor's  privacy and control over the process wherever possible.”). 
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