“If we in the
judiciary do not have the authority, indeed the responsibility, to right
fundamental wrongs left excused by a majority of the electorate, our whole
intricate constitutional system of checks and balances, as well as the oaths to
which we swore, prove to be nothing but shams.”
educator, Dr. Marty
Klein recently published
a blog titled, “Politics? I’m
Interested in Sex, not Politics.” His
thesis is that sex and politics are inextricably connected, and if you care
about rational public policies regarding the management of sexual behaviors, it
helps to have a stomach for politics.
a natural tension between complex social problems, public opinions, and laws –
perhaps that’s one definition of “politics.”
In a democracy, laws are frequently driven more by public opinion than
sound science or constitutional principles.
Some “sex offender” laws seem to be driven by fear,
anger, and misinformation,
and resemble moral
panic more than informed public policies.
When the lag-time
for scientific advances takes too long to engender best practices or influence
public policies, or when a compelling public interest can no longer justify
laws that breach the boundaries of constitutional safeguards, often the courts
step in. Beyond the illustrations that
Dr. Klein offers in his blog, there are many examples of laws that are (or
were) unwarranted, overreaching, or unreasonably intrusive, and the courts
intervened. Consider these “sexual
offenses” of yesteryear.
1967, SCOTUS struck down laws that banned both interracial marriage and interracial
sex (Loving v.
Virginia). Until 1965 it was
against the law in some US states for married couples to obtain prescription
birth control (Griswold
v. Connecticut). It took seven more
years for that right to be extended to unmarried individuals (Eisenstadt v. Baird). In 1962, sodomy was considered so offensive
that it was illegal in every US state, in some cases even between married
partners. Sodomy laws were reaffirmed by
SCOTUS in 1986 (Bowers
v. Hardwick), before finally being struck down in 2003 (Lawrence v. Texas). In 2008, the US Court of Appeals (Fifth
Circuit) decriminalized the sale of sex toys (binding
in three states). By 2015, 37 US
states had legalized same-sex marriage before SCOTUS determined that neither
race nor gender were material to the civil controls of marriage. Same-sex
marriage became legal in the US, ten years after Canada.
each of the cases above, before they were eventually overturned by the courts,
public opinion had at one time supported these laws. Some would argue that the courts stepped in
too soon – others, like Margaret
Sanger or Frank Kameny
might have said both the tide of public opinion and relief through the courts took
too long. History also reveals that even
when courts overturn antiquated laws, controversies remain, and there can still
pockets of social resistance, or widespread cultural repression
tenaciously anchored in historical roots.
Homosexual acts are illegal
in more than 70 countries, still actively
enforced, and in perhaps a dozen countries, punishable
by death. If not for a 2008 SCOTUS
ruling (Kennedy v.
Louisiana), some sex crimes in the US might still be subject to capital
social change makes laws obsolete, and they just fade away, but it is likely
that there are still
laws on the books criminalizing sexual behaviors (e.g., sodomy,
fornication, adultery), which today are unenforced, but leave historical records
of public efforts to control interpersonal sex.
Sexual violence will always be intolerable, but sexual
violations are a broad category of unacceptable sexual conduct.
US state, and countries worldwide, struggle with civil controls of marriage and
age of consent. In the US
and Canada, citizens must generally be 18 to marry, but in Mississippi
parties must be 21. In several states,
with parental/judicial approval, kids under 18 can marry - as young as 13 or 14
in New Hampshire, and in five other states there is no minimum age. Much to the detriment of teenagers,
the age of consent for sex is a minefield - around the world. In the US and
Canada, the age of consent is 16-18, with a confusing matrix of exceptions
for age differences or factors related to penetration. In most of Europe,
it’s even more difficult to navigate age
of consent laws that generally range between 14 and 16. In China, Brazil, Japan, Mexico, and the
Philippines, the age of consent is 12-14.
sex has been vexing civilization since prostitution was described as the world’s
oldest profession. While sex trafficking and child prostitution
is abhorrent throughout most of the world, tolerance for prostitution
around the world varies considerably.
Depending on one’s role in prostitution, penalties
in the US carry fines from as little as $100 to as much as $750,000, and
from 15 days in jail to 20 years in prison.
Prostitution is legal (regulated) in several counties in Nevada, and
countries. Around the world, and
throughout the US, consensual sex, legal in one jurisdiction, can create a “sex
offender” in another.
is a long history of society’s efforts to control interpersonal sex through criminal laws, but now a proliferation
of civil laws have made it easier
than ever for one to become a “sex offender.”
With public angst about “sexual offenders,” the courts are playing a
pivotal role in trying to maintain balance between veritable public safety and
constitutional safeguards around civil regulations. Competing concerns cannot always be resolved
by the courts, but sound science can always help guide the process. It is noteworthy that numerous ATSA members
contributed to much of the research noted below, and/or helped to inform policymakers. Informed policymaking does not guarantee an
outcome of good public policies; but most assuredly, misguided public policies
are the product of misinformed policymaking.
do all these criminal and civil laws, past and present, have in common? Social controls around interpersonal sexual
behavior. The truth is, there has never
been a time in history when “sex” could be separated from “politics.” What does ATSA have to add to sex, politics,
laws, and the courts? More informed public
Author’s note: The large number of links embedded in this blog are in lieu of a
long list of references, and intended to both provide empirical support for
assertions, and offer readers an easy opportunity for more information. Links to court cases are intended to inform
readers only about the nature of certain court cases. Links to research or articles are only a
sampling of the voluminous information available on the topics herein. I would also like to add that, beyond ATSA,
there are innumerable professionals, concerned citizens, and organizations,
which have contributed immeasurably to the common quest for informed social
policies, safer communities, and better lives. It takes a village. Comments or corrections welcomed.
Sexual violence has been a topic of considerable community
and legislative focus for several decades now; however, only recently has its
existence on college campuses elicited such attention. Indeed, in 2015 the
Obama administration’s Education Department took aggressive steps to address
concerns about sexual violence and harassment on campuses, spurring the
enactment of “Yes Means Yes” laws in such states as New York,
California, and Michigan (with many post-secondary institutions adopting
similar standards without legislative mandate).
person in the United States shall, on the basis of sex, be excluded from
participation in, be denied the benefits of, or be subjected to discrimination
under any education program or activity receiving federal financial assistance.
The original intent of this legislation was to ensure that girls
and women in educational arenas would be protected from discrimination and
other differential treatment based on gender. An early focus of Title IX was
discrimination in athletics, in which female students rarely received the same
opportunities to participate and benefit; however, the recent focus of Title IX
has been incidents of sexual violence on campus.
As someone who has worked in sexual violence prevention for
nearly 32 years, I have been privy to the case descriptions of thousands of
incidents of abuse, harassment, and other forms of sexual misconduct; however,
almost all within the traditional criminal justice domain. When stories of
sexual violence on college and university campuses started to become the
subject of high profile media focus, I had to admit that I had never considered
those environments as in need of specific
attention. It’s not that I somehow didn’t think it was happening on campuses (I
had known women who had been sexually assaulted when I was in school), I just
assumed that it was being managed like sexual violence in any other
environment. Turns out I was wrong, and I needed to do something about that.
Through my work with Circles of Support and Accountability,
I’ve attended a variety of restorative justice (RJ) conferences and workshops
and met many RJ theorists and practitioners, including David Karp of the Project on Restorative Justice
at Skidmore College in Saratoga Springs, NY. Together with Co-Chair Kaaren Williamsen of Swarthmore College in Pennsylvania,
David has pulled together a large group concerned academics and practitioners
from around the US and Canada – all of whom are concerned about how academic
institutions are responding to sexual violence. This month, that group – known
as Campus PRISM – released a comprehensive report promoting restorative initiatives for
sexual misconduct (PRISM) on college campuses (authored principally by Karp, Julie Shackford-Bradley, myself, and Williamsen). According to
justice encompasses a range of processes, programs, practices, and policies as
well as a philosophical perspective that offers a new approach to addressing
the problem of sexual and gender-biased misconduct on college campuses.
It is our belief that restorative interventions can be used
for community building to establish appropriate standards of sexual conduct on
campus, in addition to reducing fear and counteracting the hostile climate
sometimes characterized as “rape culture.” While we do not believe that
restorative approaches are appropriate for all instances, we are deeply
invested in reducing sexual and gender-based violence by exploring how such
approaches could foster healing and provide for greater accountability. To that
Campus PRISM promotes restorative justice
Encourage true accountability through a
collaborative rather than adversarial process;
Reduce risk of reoffending and provide
greater reassurance of safety to survivors/harmed parties and the community;
Meet survivors’/harmed parties’ needs
for safety, support, and justice; and
Create meaningful forums for the
examination of hostile campus climates and the development of
Goals of the Campus PRISM Project:
- Create space for scholars and
practitioners to explore the use of RJ for campus sexual and gender-based
misconduct (which includes sexual harassment, sexual assault, and other forms
of gender-based misconduct) as an alternative or complement to current practices.
Consider the potential and challenges
of RJ in light of the national concern about campus sexual assault.
Apply lessons learned from the use of
RJ in criminal justice sex offenses, e.g. Circles of Support and
Accountability, restorative conferencing, and other trauma-informed practices.
Gather and disseminate knowledge about
RJ practice and research.
Explore the potential for multi-campus
fundamental aspect of Campus PRISM is the belief that restorative justice –
including various circle practices – can further a prevention agenda through
the intersection of information sharing, education, reflection, and community
building. Specific to the issue at hand, circle practices encourage people with
various perspectives to sit together in a circle and explore issues related to
sexuality. One such circle practice suggested in the PRISM report is the
aforementioned Circles of Support and Accountability (CoSA), an RJ-informed
initiative in the greater sexual offender risk management domain in which perpetrators
have been paired with 4-6 community volunteers who support them in their efforts
to remain offense-free and accountable to the community. According to the PRISM
report, CoSA could provide opportunities for reintegration following an event
of sexual violence on campus:
After an incident has been officially resolved, even when a
student has been found in violation and suspended, a restorative approach takes
into account the long-lasting impact on the individuals involved and the wider
community. Although some students who violate campus sexual and gender-based
misconduct policies will require criminal prosecution and/or expulsion from the
institution, others will remain enrolled or be allowed to reenter after some
period of suspension. Implementation of a restorative approach would provide
opportunities for student offenders who return to address their issues in a
meaningful and socially accountable manner while providing for enhanced
monitoring and service provision.
present, many colleges and universities are grappling with new mandates and
responsibilities handed down by the Office for Civil Rights (OCR), the Department of
Education’s division responsible for Title IX enforcement. The consideration of
RJ options may not have been a particular area of focus as yet; nonetheless,
the report suggests that the following list of next steps could be considered
by campuses interested in pursuing a restorative approach:
Adopt a restorative lens
Create a restorative justice study group/steering committee
Develop capacity in RJ through training and facilitation
Review and update policies to include restorative justice
Promote community awareness
Engage in restorative justice research
Pilot a restorative approach
conclusion, the members of Campus PRISM firmly believe that a restorative
justice approach to sexual and gender-based violence offers hopeful
opportunities to address the concerns of victims, offenders, and the broader
educational community. We believe that simple adherence to compliance standards
will not be enough to address issues related to healing, student development,
and community growth; nor will simple compliance sufficiently promote new
perspectives such as those resultant from a comprehensive implementation of
restorative principles with attention to prevention, response, and
reintegration. Understandably, broad application of RJ principles and practices
will take time; however, as capacity grows, campuses can aspire to and reach a
goal of true community transformation.
J. Wilson, Ph.D., ABPP
Psychological Services LLC, Sarasota, FL
University, Hamilton, ON
For years I have heard the term “cultural
competency,” but I have finally seen this in action when I met with Joy Te Wiata and
Russell Smith in Auckland New Zealand.
I also saw and felt for the first
time, the connection between cultural competency and prevention. Let me explain.
On a trip to New Zealand I had the good
fortune to meet with Joy and Russell and learn from them about their clinical
practice focusing on Maori who have sexually abused. They both are Maori and they explained that while
they integrate evidence-based approaches to treatment (e.g., CBT, MST, Good
Lives, and narrative therapy) the core of their practice is spiritual.
We began our journey with a visit to a Marae,
a spiritual gathering place where Russell and Joy will often hold their weekend
retreats. They explained the traditional
welcoming ceremony where no one may enter the Marae until the female elder
invites them in. The invitation is sung
and it is sung to the individual, his (or her) family and to all of their
ancestors. If sexual violence thrives in
isolation, the process of invitation immediately provides a protective factor,
joining the offenders to all of the people around him/her who care about
him/her and to all of the previous generations.
No one enters the Marae alone. These
traditions and specifically, the invitation begin the process of setting clear
boundaries and expectations for each person entering into treatment. Over the course of the weekend, as the
traditions and treatment weave together, Joy mentioned that when the weekend is
over, it is hard to tell which men have been in treatment for a few days or for
the complete cycle – each has learned the most important lessons about respect,
boundaries, consent, and responsibility.
When I asked how they do this, Russell told me, “This is difficult work
but we sing, we laugh, and we hold each other accountable.” ‘Waiata’ or singing is a way of calibrating
and synchronizing the clients to each other and others, while at the same time
lifts their countenance to a place where the challenges and treatment can be
heard and retained. Gentle ‘laughter’ is a place where learning and awareness
becomes enjoyable and like waiata (singing) reinforced.
Throughout my conversation with Joy and
Russell, I was struck with how their deep investment in their traditions only
enhances the treatment practice. For
example, on college campuses today in the USA, we are talking a lot about
consent. A great video, popular in the
UK talks about consent -- consent
is like offering someone a cup of tea.
Consent seems so straightforward when it is placed within a tradition we
can all understand. And yet, Joy and
Russell are offering even more by also offering a spiritual connection. When the men are invited into the Marae, they
are not only taking on the responsibility for their safety and the safety of
the community, they are also offered a gift, right at the beginning of
treatment, the promise that they can
become whole again in their family and their community. It is no surprise then that the programs that
Russell and Joy run have the highest retention rates in the country. It is also no surprise that they had to add
in aftercare groups because many of the men wanted to continue with groups even
after they had completed the treatment group.
The contrast to the enforced participation within the prison setting was
Each man who enters into treatment with Joy
and Russell must also have a support person so that the closing ceremonies may
involve up to 50 people for a small group as their families and support people
join with them in their responsibility to safety and healing. Joy and Russell support the voices of each of
the family members, including the victims of sexual abuse. They incorporate the wishes of the victim,
and when a victim wrote how she loved her stepfather but was not ready for him
to come home, they worked with that family and that decision.
I grew up in a tradition which highly
valued learning. And I had always heard,
more often than not, that knowledge is power.
So I was struck by Russell’s and the Maori’s belief that knowledge is
responsibility. When Joy and Russell educate
their clients as well as their families, they are also inviting each of them to
take responsibility for each other’s safety.
Like the concept of circles of support and safety, the responsibility of
the treatment within the Marae encourages people to watch out for each other,
to confront behaviors, and to ensure that everyone in the extended family is
safe. In prevention, we all talk about
the importance of educating each other about sexual violence. More recently, I have heard that expanded to
educating people about preventing the perpetration of sexual abuse. However, we know that the one-time only education
programs offered in many schools or communities is not enough to change
behaviors. Imagine if each of these
education sessions also meant that people were accepting responsible for
changing their behaviors, confronting the behaviors of others, and seeking help
when that was needed. This invitation to
the treatment within the Marae and to responsibility is one pathway to safety
and, ultimately, to prevention.