In the wake of public attention to the Cornell fraternity alleged gang-rape, headlines resound with statements of concern and calls for greater accountability. These calls are not new. They have followed countless incidents of sexual violence, whether on a college campus, in connection with work, or within an intimate relationship. Despite decades of law and policy reform, sexual violence continues to run rampant. While law and policy reform are sorely needed, we will not see long-lasting change unless we address what accountability truly means. Our collective response should aim for a world where no one would ever think it was ok to commit, condone, or be a passive witness to sexual violence, never mind that it would be ok to send the kind of text messages that were allegedly exchanged at the Cornell fraternity where the rape allegedly took place.
As policymakers consider reform, a comprehensive approach to accountability should consider the known limitations of criminal and civil justice systems. Problems with the criminal legal system are legion, both within and beyond sexual violence cases. These include racially discriminatory application of laws criminalizing sexual violence, that, for example, have led to harsher punishment when the accused is a person of color and lesser punishment when the survivor is a person of color. Survivors continue to be doubted and subjected to biases and stereotypes, including that survivors lie about their experience, that they somehow invited the violence, or act with self-interest or ulterior motive when coming forward.
Survivors also report concern about turning to the police – they fear that the police will do nothing, will not believe them, and/or will harm them, their partners, or their children in some way. Reporting rates are low, as are rates of convictions.
The civil system can provide valuable, but limited, relief. No doubt, it is a vehicle for financial compensation, for public airing of the nature and harmful impact of gender violence, and can lead to policy change. But survivors are still doubted and dismissed when they are brave enough to come forward. Access to lawyers may be limited, and even when they receive a favorable result,civil cases can take years to resolve; survivors may struggle, and monetary judgments can be difficult to recover monetary judgments can be difficult to recover.
While law reform is critical, it should focus on delivering justice for survivors through actual accountability.
Accountability generally means accepting responsibility for one’s actions. This includes reckoning with the impact of harmful actions on others and committing to non-repetition. Yet, the link between accountability and legal recourse, whether criminal or civil, is tenuous at best. Neither of those systems builds in avenues for reflection, for grappling with the impact of harmful actions on others, for committing to changing behavior in the future, or for ensuring that survivors’ needs are taken into account.
By contrast, restorative practices offer a path for individuals who have caused harm to take responsibility for their actions. Programs on college campuses and beyond have been effective in changing attitudes towards gender violence and reducing its prevalence. Educational coaching also has had promising results in prompting those who cause harm to acknowledge the harm and change their behavior. These strategies require careful preparation and support, and they may not suit all circumstances, but they can be transformative.
Prevention programs are also critical to meaningful accountability approaches. Creative programs engage men in rethinking gender roles and lead participants to encourage other men to join in the project of preventing abuse. They also strive to help men become active allies in speaking up, speaking out, and interrupting peers who perpetuate gender stereotypes or engage in, belittle, or dismiss sexual violence. These and similar programs should be embraced and expanded.
The prevalence and persistence of sexual violence makes clear that the problem goes far beyond any one institution. The recent political advertisement demeaning a survivor of sexual assault is only one example of our culture’s insidious sanctioning of gender violence. It pervades our culture, demanding that we all consider our role in letting it persist. For example, consider how the evening might have proceeded differently if even one of the people on the text thread advertising the gang rape had objected.
Research about bystander intervention demonstrates the power of interrupting acts of gender violence in reducing violence. No doubt, interrupting violence may be particularly challenging now, given the hyper-masculine culture in which we currently live, fueled by a president who has been held liable for sexual abuse, who belittles those who speak up, and who celebrates aggression. The failure to effectively create any accountability for the rampant sexual violence surrounding Jeffrey Epstein speaks volumes about the extent of resistance to grappling with and ending gender violence.
If we do not embrace the wider goal of culture change and commit to doing our parts as we also support needed law reform, we should be prepared to be in the same place, confronting another horrifying example of gender violence, in the not-too-distant future.
Julie Goldscheid is Professor Emerita at CUNY Law School, adjunct professor of law at New York University School of Law, and a volunteer with Lawyers Defending American Democracy.
