New Clear Vision

Sexual Assault, Justice, and Just-ness

by Laura L. Finley

I, like many sexual assault advocates, have struggled with two competing feelings about the harshness of the criminal justice system versus the treatment of rapists. On one hand, I believe in second chances, am critical of the prison industrial complex, and disavow mass incarceration as an alleged “solution” to crime. I am especially troubled by the racism of our criminal justice system, which has resulted in the incarceration of far too many black men. On the other hand, the gentle treatment given to sexual assailants brings tears to my eyes.

Given that it is incredibly difficult for a victim to not only report sexual assault but also to undergo the terrifying and humiliating physical examination, then to endure the victim-blaming that inevitably occurs in the courtroom, I find myself disturbed by the ridiculously light sentences handed down to individuals who are guilty. Of course, even worse are those who never face any punishment, which is some 97 percent of rapists. Below are just a few instances to illustrate how the courts minimize sexual assault. What is notable is that the perpetrators are privileged white males. Yet advocating harsh sentences inevitably has a more significant impact on people of color than on these white males. Hence the dilemma—but, perhaps these binary options are not the only ones before us.

• Brock Turner was found guilty of raping an unconscious woman behind a dumpster. He was sentenced to only six months and served only three before being released in September, 2016.
• Austin James Wilkerson was found guilty of raping a drunk woman after assuring her friends that he recognized her incapacitation and would take care of her. Boulder District Judge Patrick Butler sentenced Wilkerson to two years in jail but allowed him to leave during the day to work or attend school. He was also sentenced to twenty years of probation.
• Massachusetts teen David Becker sexually assaulted two classmates while they were asleep at a house party. Because he claimed that the sleeping women did not protest as he began to digitally penetrate them, the judge granted him two years of probation and required him to stay away from the women.
• John R. K. Howard, an Idaho high school football player, pleaded guilty to felony injury of a child for, along with three teammates, holding down a black teammate then kicking a coat hanger into the boy’s rectum. The violent attack on the boy, who suffers from a mental disability, followed months of racial harassment and resulted in severe internal damage. The plea allows Howard to avoid jail time and does not require him to register as a sex offender. Deputy Attorney General Casey Hemmer argued that while the attack was egregious, it was not a sex crime.

So what can we do? If nothing else, these cases highlight the many flaws in our justice system’s “just-ness.” Perhaps instead of advocating for more of the same, as is tempting, we should be using these cases to highlight the need for another approach, one in which perpetrators must admit guilt and that elevates the voices of victims. One that shows the community impact of these crimes and that can thereby help identify alternate, impactful consequences for assailants that might begin to transform their beliefs.

While it remains controversial in sexual assault cases, the time could be right to advance restorative justice as an alternative to the punitive, retributive system that is not working for victims or offenders. While I disavow telling victims what they should want or do, some who have participated in restorative justice processes feel far more empowered and a greater sense of justice. Studies show the recidivism rate for offenders is far lower than in the traditional, retributive system. Because restorative justice allows for more creative approaches to holding offenders accountable, it is poised to have a far greater effect on dismantling rape culture than would imprisoning offenders for decades. I understand the concerns about asking victims to confront their rapists, but with the many technologies we have available to us there is surely a way to minimize that terror while also utilizing restorative practices, should a victim wish to participate.

What will it take? Among many things, widespread education about the mere notion that there is another way. Media attention to successful programs that can challenge our thinking about justice and just-ness. Training and financial support for restorative justice practitioners so that it is done well and not in a way that further marginalizes victims. I am not optimistic that the tough-on-crime Tr$mp administration will advance restorative justice for any types of crime, but remain hopeful that people like me—those who are fed up with how the system fails everyone involved (in sexual assault cases but in other cases as well)—will lobby long and hard for changing the way we see and practice so-called justice.

Laura L. Finley, Ph.D., is Associate Professor of Sociology and Criminology at Barry University, a syndicated columnist, and an active member of many social justice and human rights organizations.