The criminal justice system discourages reporting and fails survivors

The goal of reporting a sexual offense is generally to get help and justice for the victim, and to prevent offenders from harming others. However, the current criminal justice system often makes these goals hard to achieve, and can retraumatize victims and discourage reporting.

We need more focus on victims needs

One major problem with current approaches to handling reports of sexual offenses is that the justice system focuses on harsh punishment rather than treatment.  For instance, SH, who had to report a family member, argues that it would have been helpful for them if the approach were more victim-centered.  SH wishes victims could choose to have a victim-offender dialogue, or that the victim could have more of a say in the legal process.

“Many victims just want the offender to take ownership and accountability.  But the current system doesn’t allow for that. It will punish anyone harshly if they admit to a crime, instead of allowing these dialogues to occur,” SH told Prostasia. “Dialogue could help the offender understand the harm they caused. [It] shows the victim that they are willing to take accountability for their actions.”

Laurie Rose Kepros, Director of Sexual Litigation, at the Office of the State Public Defender in Denver, Colorado, told Prostasia that government and law enforcement officers often have little interest in victim perspectives or needs. Survivors may not be able to safely access help or information without triggering a mandatory report. Many survivors do not realize that they need a lawyer to advise them, and would not be able to afford one even if they did.

Kepros adds that law enforcement and prosecutors may even deceive survivors or witnesses, intentionally or unintentionally. Officials often present themselves as resources who are there to help victims. But law enforcement’s primary goal is securing a conviction or sentence. They have no legal obligation to keep anything a survivor or witness tells them confidential.

Thus, if the institutional priority of prosecution and conviction is in conflict with a survivor’s needs or wishes, the survivor’s needs and wishes come second. Survivors do not get the option to refuse to participate in a criminal court process. Financial resources are generally directed towards criminal prosecution, and can not be used to help survivors recover or to get perpetrators aid to rehabilitate.

For all of these reasons, survivors often feel like their voices aren’t being heard. Many don’t get a chance to heal, and may feel let down even if the perpetrator is convicted or punished.

The criminal justice system discourages reporting

More than three quarters of sexual assault survivors never report their attacks. Psychotherapist Beverly Engel explains that “Victims are often too ashamed to come forward. Sexual assault is a very humiliating and dehumanizing act against someone. The person really feels invaded and defiled, and there is a lot of shame attached to that.”

Police routinely increase that shame rather than defuse it. Recent investigations show that police remain skeptical of the testimony of sexual assault survivors. Especially in cases involving less affluent victims, police often actively discourage survivors from filing reports and prosecutors are reluctant to press charges, according to the Atlantic.

When survivors do report, the police can be callous and cruel. Alison Turkos  told ABC News that when she reported her sexual assault to the police, they had her friend take photos of her bruises in the bathroom “which was traumatic for me and traumatic for her.”

HS, a rehabilitated former offender who was reported for downloading child pornography by his girlfriend, said that in his experience police are generally bad at and/or hostile to investigating sexual violence.  Many times, even if there is a report, they won’t investigate the case. He adds, “police departments generally don’t allocate a lot of resources to sex crimes units because there isn’t a lot of money to be made there.”

Police indifference discourages some survivors. But the emphasis on criminal prosecution and punishment in itself can also lead survivors and witnesses not to report. A Canadian study, for example, found that 31% of sex workers in the country wouldn’t dial 911 for fear that police would harass or arrest them. A sex worker in Australia said “I wouldn’t call the cops if I was being bashed to death.” In the US, police themselves often “take advantage of criminalization by extorting sex workers or coercing them into sexual acts, threatening arrest if they don’t comply,” according to the ACLU.

Harsh punishments and demonization of offenders also make people reluctant to report. Attorney Laurie Rose Kepros notes that the sex offender registry in particular has “definitely muddied the public understanding of the true dynamics of sexual offenses.”

Some people who have been harmed will not report when they have been assaulted by someone they know or care about. They may believe that the person who harmed them does not fit the “monster” stereotype of sexual offenders, and so cannot really be an offender. Or they may want to protect the person from stigma and harm. Or again, they may fear that police will do little to help, and that their attacker may retaliate and harm them again.

“Relatively few people are ever held to account,” HS says. “This fuels a lot of anger, amongst advocates for survivors, and often more calls for punishment, which just perpetuates the same broken system already in place.”

A restorative justice approach

Cindy Prizio is the founder and executive director of One Standard of Justice, an organization devoted to promoting a rational policy approach to sexual offending. She is a proponent of “restorative justice” approaches to dealing with people who sexually offend. Restorative justice advocates argue that hurt people will continue to hurt people, and healed people help heal others. They believe that treating violent people with violence only leads to more violence and try instead to de-escalate and treat others with dignity.

Prizio explains that the current criminal legal system asks first, What law has been broken, who did it, and how can they be punished? People are not given the opportunity to change; instead the system assumes once a criminal always a criminal, and once a sex-offender always a sex-offender. The system runs on “fear, fear-mongering, and ignorance,” she says.

In contrast, restorative justice asks who was harmed and how the harm can be repaired. With restorative justice, perpetrators can take real accountability for their behavior rather than avoid it in a court of law or passively submit to incarceration.  Real accountability changes behavior and reduces recidivism.  People who have been sexually assaulted can ask the person who harmed them for explanations and apologies, and perpetrators have the opportunity to show real remorse.

Unfortunately, Laurie Rose Kepros says, most victims in the US—especially victims of sexual violence and domestic violence— cannot access restorative justice services, or are not aware that they exist. Services that are available generally focus on cases in which perpetrators are under 18, according to sujatha baliga, a restorative justice practitioner, in an essay on Vox. With this population, though, restorative justice has been quite successful; 91% of survivor-participants in a program in Alameda County said they would participate in the process again.

Restorative justice isn’t always a perfect solution. Sometimes survivors do not want to see their assaulters face-to-face. Sometimes it is dangerous for them to do so. Perpetrators may continue to hedge or justify themselves, especially if they fear their words may be used against them in criminal proceedings.

But one thing is clear; the current criminal justice system does not provide justice or healing for most survivors. A different approach is needed.  

Notable Replies

  1. Avatar for Cringe Cringe says:

    Yep, that is exactly what every german sex expert said when the government wanted to raise penalty for CSAM. Almost 40% of CSAM cases are committed by teens here and instead of getting help they now get punished even harder. Usually, they would just cease the case and have a word with them, or make them do social work.
    Now that abuse is in a different crime category it will now always require a public hearing where the victim has to describe everything. Usually they did this behind closed doors if it was a minor case of abuse, or it would have been handled through a penalty order. Despite every expert, that was called to comment on the draft, not recommending this change they did it anyways.

    Harder punishments without any prevention elements added is an awful idea. In Taiwan you get a joker card basically and are forced to go to therapy if you are caught with CSAM for the first time. That seems more reasonable, because you have the shock of being caught, the therapy and the reminder that next time is gonna be an actual penalty.

Continue the discussion at forum.prostasia.org

Participants