Response to: Say no to restorative justice for sex offenders

Editor’s note: In January, an opinion contributor for the Hill, attorney Michael Dolce, denounced the use of restorative justice for remediating the harms caused by sex offending. I drafted a rebuttal, but the Hill and various other online publications chose not to publish it. The trouble is, Dolce’s fear-driven response is precisely why sex offender registries are ineffective policy instruments and is a driving factor for the formation of the Sex Law and Policy Center. Refusing to publish a sound rebuttal implicitly suggests these emotional responses are to be tolerated and contrary opinions are hazardous to the publication’s longevity. However, we ought to shift our emotional responses to sex offending to an evidence-based approach; otherwise, sex offender registries will continue to be an abortive attempt to promote community safety.  

Courtesy Richard Saker, The Guardian

Courtesy Richard Saker, The Guardian

Michael Dolce, in an opinion published for the Hill, argues restorative justice is “horribly insufficient for handling sexual abuse but, in many cases, actually serves to leave an offender free to offend again.” Dolce’s argument evokes a “tough on crime” rhetoric, which is not only patently misleading but grossly capitalizes on fear-based responses to sex offenses. Other than perpetuating unfounded conventions, Dolce’s most egregious mistake is his failure to account for the nuances of sex offending. He conflates the varying types of people who commit sex offenses, misrepresents recidivism statistics, and doesn’t appreciate the principles of restorative justice.

CONFLATION OF PEOPLE WHO COMMIT SEXUAL OFFENSES

Throughout his opinion, Dolce maintains most people who commit sex offenses are psychopathic manipulators who are incapable of empathy and begin their reign of terror by objectifying and dehumanizing their victims. Much like the general public, Dolce views people who commit sex crimes as one and the same; all possessing a high risk of recidivism and a low probability of rehabilitation. In particular, he falsely assumes most people committing sex offenses are psychopathic rapists by frequently interchanging the terms “sex offender” and “rapist”. These terms are NOT the same. While all rapists are "sex offenders," not all people who sexually offend are rapists. Rapist is even a broad term deserving of nuanced understanding. Using these terms as loosely as he does feeds the mythconception that all people who commit sex offenses are equally dangerous, which is categorically untrue.

There is no such thing as a typical “sex offender”.

Not only does Dolce conflate rapists and "sex offenders," but also argues, “the consensus among mental health and criminal justice professionals is that most sex criminals cannot be reformed; they can only be monitored, controlled and contained.” This declaration is untrue, as most mental health and criminal justice professionals remain divided on the subject. Research findings are inconsistent, because “treatment effectiveness can be dependent on a variety of factors, including the treatment climate, program delivery, and how the participant responds to treatment.” In spite of inconsistencies, evidence suggests that treatment, especially cognitive behavioral approaches, can produce reductions in general and sexual recidivism. Research contends the behavior of the person committing the sex offense, their motivations for the offense, the risk of committing another sex crime (sexual recidivism), and treatments to reduce their sexual recidivism varies considerably. In short, there is no such thing as a typical "sex offender".

MISREPRESENTATION OF RECIDIVISM RATES

Referencing recidivism statistics from the SMART Office, Dolce misleadingly opines that “two-thirds of male sex offenders will re-offend if they are not treated and restrained as criminals.” His claim is exceptionally vague and a direct source is not provided. Unfortunately, his belief about the recidivism rates of people who commit sex crimes is not uncommon. Due to the media onslaught of highly-publicized, but rare, cases of sexual murder many people mistakenly believe people who commit sex crimes are lurking around every corner awaiting their next victim.

The research literature, however, reveals a different narrative. Recidivism rates will vary depending on the type and definition of recidivism, the population studied, data sources, follow-up periods, whether treatment is involved, and a host of other factors. Among recidivism types, there is sexual recidivism, which is committing another sex crime, and general recidivism, which includes committing any non-sexual crime or technically violating supervision. The operational definition of recidivism may be explained by an event like arrest, conviction, or return to prison, or there could be a follow-up period of 3, 5, or 15 years. Additionally, recidivism rates vary widely depending on the offender population. For example, rapists have higher rates of recidivism than child molesters.

It is crucial to be as specific as possible about recidivism statistics. Otherwise, misleading facts feed the sexual hysteria which has resulted in draconian sex offender legislation and lends little to increasing public safety. Instead of misleading, Dolce could’ve used these more precise recidivism statistics from his source:

  • 3-years post release sex offenders have a lower general re-arrest rate than non-sex offenders (43% to 68%)
  • 3-years post release sex offenders have a higher sexual re-arrest rate than non-sex offenders (5.3% to 1.3%)
  • Similar patterns are consistently found in other studies that compare sex offender and non-sex offender recidivism
  •  ~5-years post release treated sex offenders have an 11.1% sexual recidivism rate and 17.5% for untreated sex offenders
  •  ~5-years post release treated sex offenders have an 22.4% general recidivism rate and 32.5% for untreated sex offenders

UNAPPRECIATIVE OF RESTORATIVE JUSTICE PRINCIPLES

While Dolce would like to “simply punish offenders,” this approach is limited in its capacity to affect change and reduce harm. The criminal legal system is an adversarial process, and it “discourages offenders from taking responsibility for their actions. Anything you say can and will be used against you, so attorneys advise their clients to remain silent, to obfuscate, to shift blame, and to minimize.” Furthermore, depending on the restorative justice framework, it may not exclude the possibility to punish and “right the wrong” caused by the harm doer.

Dolce correctly identifies restorative justice practices “require offenders to make amends with victims,” but he fails to appreciate its purpose as a tool for healing. Restorative justice is less about the harm doer and more about how their actions can be remediated to rebuild the community’s trust, and more importantly, acknowledge the needs of the survivor. Judith Levine, a prominent sex offenses researcher notes truth and reconciliation commissions “give victims a platform to speak bitterness; they engage broader circles in deciding just and useful restitution; and critically, they seek to bring the harm-doer back into the community and help him embrace the values he has transgressed.”

Survivors deserve empowerment.

The goal of restorative justice is to create a safe space where harmed parties and harm doers work to understand each other’s perspectives so a sense of meaningful justice is achieved. Restorative justice assumes the harm doer has taken responsibility for their actions, and is not about findings of guilt. It is about empowering harmed parties in a supportive environment so the person who harmed them is acutely aware of the harms caused. People who have committed harms are held accountable for their actions, must accept responsibility for their crimes, and steps are taken to lower the chance of them sexually re-offending.

Much of Dolce’s argument centers around the actions of the harm doer, while largely ignoring the voice of the person harmed by assuming all harmed parties will not desire restorative justice. The harmed person has to be the one who wants restorative justice. No restorative justice framework forces a person who has been harmed to engage in a restorative justice practice unless they consent. Understandably, much of Dolce’s opinion is rooted in his own sexual abuse experience, but his survivor voice is not of greater importance than any other survivors. All have a right to be heard in a way that promotes their own healing. Survivors deserve empowerment, and restorative justice can help.

As an aside, Circles of Support and Accountability is a restorative justice approach which has produced promising results for people convicted of sex offenses.

RECOMMENDATIONS FOR MOVING FORWARD

Overall, Dolce’s opinion should have a more nuanced understanding of not only sex offending, but also the type of sex crime committed, and survivor needs. While sexual violation is never appropriate, Dolce fails to provide any statistics about what people are committing which acts. For example, how many are rapes, how many are inappropriate touching, how many are harassment? The reader is also not provided with the full scope of what survivors think and want regarding their sexual assault.

Are you ready to have an honest conversation, free of vitriolic language?

Dolce mistakenly assumes that survivors do not “want to suffer an even greater burden by making them take part in their attackers’ so-called ‘reformation’.”  Researchers in the United Kingdom found that sexual assault victims who participated in a restorative justice conference experienced a “really big turning point.” For one victim, being able to speak directly to the offender was not traumatic but deeply healing. “I just wanted him to hear me,” she said. The truth is that it depends on the survivor, some will want restorative justice, but others will not. We need to meet survivors where they are in their healing process and work with them, not dictate what works for them. By Dolce’s account you would assume that all sexual assaults, people who commit sex crimes, and survivors are uniform, but it’s far more complex. 

Instead of spreading inaccuracies, attorney Dolce should take a “smart on crime” approach founded in logic and empirical research. If we truly want to figure out how to reduce the problem of sex offending and promote healthier and safer communities, we will need to approach tough topics with an inquiring mind. We will need to have our preconceptions challenged so we can learn how to create safer communities, rehabilitate those who committed sex offenses, and most importantly, help survivors move beyond their trauma. It’s more than empathy, we need sympathy to know that we are in this together. Are you ready to have an honest conversation, free of vitriolic language? Then comment below, or reach out and engage us.