EWING, New Jersey — On a bright afternoon in September, the College of New Jersey was buzzing with new-school-year energy. Students outside a dorm quizzed each other about history while another group played frisbee on a stretch of lawn. At Brower Student Center, a busy hub in the middle of campus, people gathered on low couches and at high tables, chatting, working on their laptops, texting — a whirlwind of connections and inside jokes taking form.
But up a flight of stairs, Chelsea Jacoby’s office was quiet. A fragrance plug-in from Bath & Body Works emitted a calming scent. A box of tissues sat on her desk, ready for students who might need it.
Jacoby’s office is where most people come when they want to talk about moving forward with a sexual misconduct complaint. It’s not just students. Faculty, staff, or anyone from the surrounding community can report assault, harassment, domestic violence, or other misconduct to the college Title IX office. The office calls these people “reporters”; accused people are referred to as “respondents.”
When a person reporting misconduct comes to Jacoby’s office, she shows the person a binder laying out their options. If students experience a crime, like sexual assault, they can always report it to police. But some forms of sexual misconduct — harassment, for example — are not always criminal in nature. And around the country, many college students prefer to report offenses to their schools rather than going through the criminal justice system, a process that can be traumatic for survivors and rarely leads to a conviction.
At TCNJ — as at other colleges and universities — reporters can pursue a Title IX investigation, in which school officials typically interview any witnesses, hold a hearing, and determine if the respondent should receive punishment like suspension or expulsion.
Survivors’ advocates see the process as an important option for students, especially given the failings of the criminal justice system. But critics claim it’s not fair to accused students, because it doesn’t require that allegations be proven beyond a reasonable doubt. In recent years, the Trump administration has sided with those critics, and last year, the Department of Education under Secretary Betsy DeVos proposed new regulations that, some say, will tip the balance so far in favor of accused students that survivors will stop coming forward.
But at TCNJ, people reporting misconduct have another option besides an investigation: what the college calls an “alternative resolution.”
The process is based on the principles of restorative justice, an approach that focuses on repairing the harm done to a survivor rather than on assigning punishment to a perpetrator. At TCNJ, the process starts with a question, Jacoby said: What would the perpetrator “need to hear, see, complete, or do, to recognize and acknowledge the potential harm, and for that to potentially be repaired?”
That looks different for every case. Several people accused of misconduct have undergone one-on-one workshops with a therapist designed to teach them about consent and healthy relationships so they’re less likely to harm someone else. In other cases, the accused student has undergone alcohol or drug education, learned about the neurobiology of sexual assault, or read an impact statement explaining how the other person was hurt by what happened.
These might seem to some like an accused person getting off easy, but the process was developed at the college partly because students reporting assault wanted an alternative to an investigation.
The results of alternative resolution, TCNJ officials say, have been overwhelmingly positive, both for reporters and respondents. “It was definitely not easy,” one reporter wrote in a feedback form, “but I finally got the closure I needed.”
Right now, about half of TCNJ students who choose to move forward with assault complaints go the alternative route. For the college, it’s another way of handling a problem that’s rampant both on campuses and in society at large — an estimated one in five women and one in 71 men experiencing rape at some point in their lives.
And with the future of formal campus investigations in doubt — and with many Americans searching for ways to respond to assault two years after the rise of #MeToo — it’s a model that’s likely to be replicated elsewhere.
Restorative justice means education for those accused — and, hopefully, a sense of empowerment for survivors
At the College of New Jersey, a public college with about 7,000 undergraduates, the “alternative” process begins with a contract. The person reporting misconduct works with Jacoby to detail what the person accused would need to do to help repair the harm experienced. Since the program began two years ago, only two people accused of misconduct have declined to participate in the process — when that happens, reporters can choose a formal investigation or just get accommodations. But if the respondent agrees to the terms, both will sign the contract and the respondent will get to work.
Often, that means meeting with Zach Gall, a prevention education specialist at TCNJ. Gall got his bachelor’s and master’s degrees at TCNJ and always knew he wanted to be a therapist, working in sexuality and gender. He didn’t realize he’d end up working with young men accused of sexual assault. But since he became part of the alternative resolution process in 2017, he’s met with about a dozen respondents, all of them men, to help them understand their role in harming someone else and keep them from doing it again.
Gall doesn’t just work with people accused of sexual misconduct. He also conducts workshops and classes around campus on healthy masculinity, with the goal of getting students to think about how boys and men are socialized, and how that socialization can sometimes contribute to violence.
“The violence prevention world has historically been staffed and sustained by women,” Gall said. “That’s wonderful — there are plenty of people doing amazing work — but we can’t do this with half the population. We need everyone to sort of buy into the idea that violence is bad.”
His classes on healthy masculinity include activities like the Man Box, where students list social expectations of men in a box drawn on a chalkboard, and “we talk about how people are kept in that box.” But his work with respondents accused in sexual assault cases is more individualized.
In one case, Gall told me, a student said, “During the sexual assault, I laughed, and the other person read that as enjoyment, but I was actually terrified.” The student wanted the respondent to learn more about how people react during sexual assault so he could understand that her laughter wasn’t actually giving consent — “I just had to release the tension somehow, and that’s what happened,” Gall said she explained. As part of the alternative resolution process, the respondent watched a webinar by psychologist Rebecca Campbell titled “The Neurobiology of Sexual Assault,” summarized it, and discussed it with Gall.
The webinar had a big effect on the respondent accused of assault. “This is actually going to change how I engage in sex and what I’m asking of my partners,” Gall says the respondent told him. (Because of privacy concerns, I wasn’t able to interview students who had been through the process.)
In other cases, Gall or another facilitator on campus will guide people accused of misconduct through a three-session workshop he and others at the college developed to teach about consent and healthy relationships. The workshop includes materials like a video showing how relationship abuse can escalate over time, and discussions with Gall in which he asks open-ended questions that help students put their lives in context.
For example, he might ask what behaviors in the video felt normal to them, and which ones would seem like red flags if they saw them in real life. “The more subtle signs of domestic violence, we don’t always recognize,” Gall said.
Once people accused of sexual misconduct complete the process, Jacoby has a final meeting with them to talk about what they learned and answer any questions they may have. She also offers a final meeting with the person reporting the misconduct to inform them that the respondent has completed the process, describe the accused’s general level of participation, and offer ongoing support.
Not every case is eligible for alternative resolution, though. Cases can’t go through the process if they involve a weapon, visible injuries, or an ongoing risk to students. Allegations of repeat offenses also aren’t eligible for alternative resolution — the process is meant, in part, to educate people. If a person is accused of offending again, Jacoby explained, the education may not have worked.
Some are skeptical that a process like the one at TCNJ can ever be effective for perpetrators of sexual assault. Restorative justice may be appropriate for people who have made sexist comments and just need to learn how damaging such verbal harassment can be, said Michael Dolce, a lawyer who specializes in cases of child sexual abuse. But people who commit assault are different, he said.
“These sex criminals have a pathology that is rooted in accessing victims by deceiving, by convincing people that they are safe,” he said. And they often use “the exact same techniques to convince people that they’re truly sorry when they’re not.”
Though treatment for perpetrators of assault can be helpful, he added, it can take years to be effective, and perpetrators need to be removed from the community where they committed the offense. Restorative justice for perpetrators of sexual assault “sends the wrong message about who this person is, and it suggests that it’s relatively easy for someone to restore themselves to the community,” he said.
So far, TCNJ hasn’t gotten a report of repeat offense against anyone who’s been through the program. In the 2018-2019 academic year, 60 people came to the school’s Title IX office to report misconduct, Jordan Draper, the college’s assistant vice president for student affairs and dean of students, told me. Of those, just 17 were interested in moving forward with a formal process. Ten chose alternative resolution, and seven chose investigation.
Overall, feedback from both survivors and people accused in the alternative program has been positive, Jacoby said. But since it’s only been in existence since October 2017, it’s too soon to tell what some of the long-term effects will be.
At this point, the college is still working on informing students that alternative resolution is an option at all. Some students remain afraid to report sexual assault because they think an investigation is their only choice, Jacoby said. Rebecca Melton, a sophomore who organized the school’s SlutWalk this year to protest the blaming of sexual assault survivors, had never heard of alternative resolution until I told her about it. In general, though, the school administration takes sexual misconduct seriously and is working to address it, Melton said. “It’s just not reaching students in a manner that it is understood by students.”
To help raise awareness about the alternative process, Jacoby has started collecting anonymous comments from students that she can share at campus events. She’s inviting students who have been through the process to write these comments on postcards with prompts like, “the alternative resolution process allowed me to …”
During my visit, she showed me one of the cards. The process “gave me the opportunity to make a direct impact statement to my abuser where I could express all those thoughts I wish I had said to him sooner after he hit me,” a student had written in black Sharpie. “It allowed me to feel EMPOWERED.”
Around the country, restorative justice is getting more popular
The College of New Jersey isn’t alone. A growing number of colleges and universities around the country are considering processes inspired by restorative justice. About a dozen schools have laid the groundwork for such, David Karp, the director of the Center for Restorative Justice at the University of San Diego, told me. A few — most notably TCNJ, the University of Michigan, and Rutgers — have actually put restorative justice into action, he said.
Restorative justice has roots in indigenous communities, as sujatha baliga, director of the Restorative Justice Project at Impact Justice, wrote for Vox last year. For example, the Navajo peacemaking process focuses not on punishing people but on helping them understand how their actions were wrong, as Robert Yazzie, chief justice emeritus of the Navajo Nation Supreme Court, explained in a 2004 interview. Canadian authorities began to use restorative justice in a criminal-justice context in the 1970s, and the concept began to spread in the United States, Europe, and Australia through the ’80s and ’90s, according to the International Institute for Restorative Practices.
Today, restorative justice is just starting to be used in the juvenile justice system and as a disciplinary strategy in K-12 schools (although the evidence for its effectiveness in the latter context is mixed so far). And in the #MeToo era, it’s getting attention as a potential response to sexual misconduct in the workplace.
The rise of the #MeToo movement has exposed how inadequate both the criminal justice system and workplace human resources departments often are when it comes to helping survivors of sexual misconduct.
In the criminal context, reports of sexual assault rarely lead to a conviction, and survivors are frequently shamed by defense attorneys and the public alike when they come forward. Company investigations of workplace sexual misconduct can be equally unsatisfying for those reporting it. While such investigations have led to sanctions in some cases, they’ve also frequently left powerful men in high-profile jobs with no clear explanation of their findings.
As the #MeToo movement matures, some have also raised concerns about justice for those accused. While those concerns have sometimes taken the form of blaming women for speaking out, there are also valid questions to ask about how to ensure that accused people are fairly represented, how they can make amends, and what their redemption should look like. Restorative justice offers some possible answers.
It can also offer alternatives to imprisonment, something many gender and racial justice advocates support amid growing opposition to mass incarceration in America. For Venkayla Haynes, a speaker, advocate, and sexual violence survivor, the approach “is a better alternative than the prison system,” she told Vox in an email. “There is an opportunity for institutions and respondents to hold themselves accountable and also be transparent, committed to providing the necessary resources and accommodations for those involved” as well as education for the entire community “so we can better understand the situation and it doesn’t occur again.”
In the university setting, at least, there’s evidence it can encourage learning. In a study of 659 cases at 18 colleges and universities, Karp and his co-author Olivia Frank found that restorative justice helped students learn more than traditional hearings, as measured by their responses to questions like, “How much did the process help you to take responsibility for the consequence of the incident?”
Restorative justice, Karp and Frank write, “supports rather than stigmatizes, engages rather than isolates, empowers rather than silences, and teaches that meaningful accountability can rebuild a fractured campus community.”
Campus activists helped raise awareness about the issue of sexual assault. Now colleges may again be on the forefront of change.
It should come as no surprise that when it comes to responding to sexual misconduct, innovation is coming from college campuses. In the 2010s, student activists helped make sexual assault part of the national conversation by demanding that their schools take the problem more seriously.
Public protests captured headlines — Columbia student Emma Sulkowicz, for example, received widespread media coverage (as well as vilification) for an art project in which they pledged to carry a mattress on campus until the man they said raped them was expelled or graduated. Around the country, students filed lawsuits against their schools for failing to adequately address assault. The movement, in many ways, helped pave the way for the growth of #MeToo.
Now that movement is entering the third year of its most public phase, and with countless reports of sexual misconduct now out in the open, workplaces, government organizations, and ordinary Americans are now trying to figure out how to respond. Yet again, colleges and universities might be on the forefront of change — they could “set a standard for how things can unfold in other arenas,” Karp said.
That standard looks a bit different from school to school. Rutgers, for example, about thirty miles away from TCNJ in New Brunswick, New Jersey, started what it calls its alternative process in spring 2019 and has already had 12 cases — including ones about sexual assault, harassment, and stalking — Amy Miele, the lead Title IX investigator on campus, told me by phone.
As at TCNJ, the process starts with an agreement signed by both the person reporting misconduct and the respondent, Miele said. But in some cases, the students meet in person, together with trained facilitators, and decide how the harm can best be repaired, a process inspired by restorative justice circles, a staple of the approach. Respondents have been assigned to attend and report on a workshop on toxic masculinity, learn bystander intervention techniques and teach them to other students, or do community service, Miele said. One request for a respondent was simply, “delete my number out of your phone and don’t contact me,” she said.
Rutgers has gotten “all positive feedback from all parties” involved in the alternative process, Miele said. The process “provided me with a sense of relief that effort will be made to better the situation,” one person reporting misconduct wrote in a feedback form. “It showed me a game plan that I could follow to alleviate the harm done to [the reporter] and to better myself,” a respondent wrote. (As with TCNJ, I wasn’t able to speak to students who had been through the Rutgers process because of privacy concerns.)
Rutgers has seen an uptick in people reporting misconduct following through with a resolution process since the alternative was put in place, Miele said. Prior to that, students often backed out of any process at all because they didn’t want to go through an investigation and hearing.
Still, college and university officials who use restorative justice are aware it can’t solve every problem. While campus-wide education programs at TCNJ can help, Draper said, the reality is, “we can’t stop every sexual assault.”
“In knowing that,” she explained, “what we’re trying to do is create processes and avenues that help in the healing process and at least try to restore some of the harm that’s been created.”
The Trump administration could make it harder for colleges to fight sexual assault. Restorative justice is one possible way forward.
Restorative processes like the ones at Rutgers and TCNJ could become more common in the years ahead, thanks to changes coming from President Trump’s Department of Education. For years, sexual misconduct investigations at many colleges, universities, and secondary schools have been based on 2011 guidelines issued by the Obama administration on the enforcement of Title IX, a federal non-discrimination law that also protects students from sexual assault and harassment.
The guidelines explained how schools should investigate complaints, requiring, for example, that schools use a “preponderance of the evidence” standard — meaning a respondent would be found responsible if it was “more likely than not that sexual harassment or violence occurred.”
In 2017, the Education Department under Secretary DeVos rolled back those guidelines, and in 2018, the department proposed new regulations that would, among other changes, require schools to allow respondents to cross-examine reporters at an in-person hearing (albeit through a lawyer or other advisor). Those regulations are expected to be finalized this fall.
Anti-sexual assault groups are concerned that the new rules will retraumatize survivors and discourage them from coming forward about assault. “This will make schools less safe and make it harder for survivors to report,” Jess Davidson, executive director of the group End Rape on Campus, told Vox last year.
In a formal investigation at TCNJ, people accused of misconduct are allowed to ask questions at their hearings, but not in person. The person accused and the survivor are typically seated in separate rooms and connect to the hearing by Skype, and any questions have to be asked through the hearing administrator.
The idea of an in-person cross-examination by a lawyer “is completely terrifying” for reporters and respondents alike, Draper, the dean of students, told me. “I think that it would be really hard for college administrators who are looking out for the safety of all students to recommend a process where there’s going to be cross-examination,” she said.
If schools are required to offer in-person cross-examination as part of formal investigations, it’s not just students who are going to want alternative resolution processes, Draper said. “A lot of colleagues in Title IX are going to feel like that’s the most ethical decision as well.”
Advocates say the rise in student activism, as well as the Obama guidelines and an uptick in Title IX enforcement by the Obama administration, led to significant improvements in schools’ handling of sexual assault and harassment. But underreporting remains a problem.
Nearly 80 percent of rapes and sexual assaults are never reported to law enforcement, and the fact that 89 percent of colleges listed precisely zero incidents of rape in their campus crime statistics in 2016 suggests the crime is underreported on college campuses as well. Many fear that the Trump administration’s approach will erase the Obama-era gains and make the problem worse.
“Even with the much more supportive orientation of Obama guidelines, students were not coming forward,” Karp said. The new regulations “will just seal the deal on that,” he said. “I think any honest institution or Title IX coordinator or general counsel that says they truly want to support students needs to offer something else.”
To some degree, colleges may be forced to find creative solutions if the Trump administration regulations make their formal processes untenable. That’s not ideal — most anti-sexual-assault advocates agree a formal process has value, and don’t want to see it hobbled by the new Education Department regulations.
And not everyone believes restorative justice is the best solution to the problems the new regulations could create.
“It is obviously important for colleges and universities to pay close attention to any regulations,” said Dolce, the lawyer who specializes in sexual abuse cases, “but I also want them to recognize that those are baselines at best.” As a lawyer as well as a parent, he said, “if the baseline required by federal law doesn’t restore safety in the environment, I have a problem with that.”
Draper said she was inspired to develop the alternative resolution process at TCNJ by students who came to her saying, “I don’t want to move forward with a process, but I want this person to know that they did something wrong” and “can you tell them that so that it doesn’t happen again?”
Students reporting misconduct often “don’t want justice in that traditional way,” Miele said. “They want justice in that they can sit down, have a facilitated dialogue about what happened, get their questions answered, talk about the impact of the incident themselves. That’s what’s going to aid in their healing best.”