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Situation Room: Should Sexual Offenders Get 'Scarlet Letters'?

MTV staffers tackle the thorny question of what 'justice' means

When events warrant, MTV staffers gather together in our virtual secure bunker to discuss the political news of the day. Monday's topic: In response to a recent NPR article, should sexual offenders' transcripts be branded with a "scarlet letter" forevermore? Here today: Julianne Ross, Ana Marie Cox, and Julie Zeilinger.

Ross: Can we begin by agreeing that comparing rapists to Hester Prynne (as one attorney did in the NPR piece) is ... unwise?

Cox: It's a terrible metaphor, but I gotta say, the idea of putting a crime on someone's transcript forever troubles me. It's just the way our justice system works: There's a point at which you have paid off your debt to society.

Ross: I get that, but some of the quotes in this article are maddening. It’s a stupid metaphor that betrays the thinking behind so many of these arguments for wiping records: Boys' reputations (it’s usually boys, but of course, not always!) matter more than their actions. Who cares if he was "expelled just months before graduating from an Ivy League school with a 3.9 GPA"? This is like when CNN lamented the ruin of the Steubenville rapists’ football careers.

Cox: Well, I admit, the first thing I thought of here was how the “sexual predator” lists have turned into Kafkaesque clusterfucks for some people — you can get on that list because of a public nudity charge or "lewdness" or even for statutory rape in cases where parents have pushed for prosecution of an older boyfriend, and then you're on that list for the rest of your life. What's more, those lists do little to prevent the most common and pernicious kind of offender: the relative, the teacher. But then, right, no violin tiny enough for the Steubenville guys.

Ross: To be clear, I think there are two related but somewhat different issues here: the truly sometimes “Kafkaesque clusterfuck” of sexual predator lists, and what to do about those who have actually been accused of rape. Let’s focus on the latter. It’s complicated, for sure, but so often these discussions pay little attention to what the perpetrators did and implicitly cast rape as youthful indiscretion that should have the right to be forgotten.

Cox: I think this might be a good idea in some limited sense — somehow give the offense context, or impose a time limit or an appeals process. But I've been doing so much reading around restoring rights to felons, the "ban the box" movement, etc., that the place my mind went was how these sorts of penalties wind up being distributed in a way that compounds injustice. When we use our criminal justice system to punish people and not the crime itself, it's the already disenfranchised who get pushed further to the edges of society. But the real problem here, I'm realizing, is that the situations we're talking about are outside the justice system entirely. Transcripts are not legal documents, and what's being proposed is an ad hoc way of creating consequences outside the state. That's the problem.

Zeilinger: I agree with Ana Marie’s point that we need to perhaps think beyond punishing people as opposed to crimes and think beyond the judicial system, but I think Julianne is also totally right that individuals who perpetrate acts of violence should certainly have to answer for them. It seems the main issue is that both the judicial system and campus adjudication processes fail in both of these ways: They purportedly attempt (but ultimately fail) to punish people rather than address their crimes — and, most importantly, the root causes of those crimes — and in effect fail to hold assailants accountable. Rather than brand individual men, though, we have to start considering justice more systemically: to think about how to address and eradicate the rape culture and the culture of entitlement that produced them.

A lot of survivors and advocates think there has to be an entirely new process and are pointing to restorative justice.

Cox: Yes, I think that's exactly right: How can we (they, whoever) create a mechanism to make the entire system more just, rather than targeting individual men? What does restorative justice mean in that context? I'm mainly familiar with the term as a way of dealing with society-wide crimes, like the Truth and Reconciliation Commission in South Africa ... which is not to say that rape isn't a society-wide crime, obviously! And perhaps thinking about rape/rape culture as the kind of crime that implicates everyone is the point of the restorative justice framework on campus?

Ross: Julie is so right re: using this form of punishment as a means to actually skirt accountability and not focus on more systemic ways to address sexual violence. I’ve started seeing a lot more talk of restorative justice in activism spaces as well, and I'm also curious as to what it could look like. I’ve heard of it being used successfully in high schools for lower-stakes offenses, and it seemed promising. I think we're basically grappling with the fact that what "justice" actually means is not always clear in the first place, and is obviously not the same in every circumstance.

Zeilinger: The most in-depth research I’ve seen on restorative justice has come out of Skidmore, and it not only seems to address the issue systemically in terms of its treatment of perpetrators — by recognizing that punitive, reactive responses to individual assailants hardly address the deeper forces, like rape culture and toxic masculinity, that perpetuate assault — but also in terms of its treatment of survivors. Namely, this form of restorative justice doesn’t assume that justice equates to punishing assailants, but instead really interrogates what justice for survivors means. It acknowledges that survivors react differently to trauma, including responses that may involve wanting and needing to talk with their assailant after the fact. It recognizes that just as, perhaps, there’s no singular, demonized perpetrator, there’s also no “perfect victim.” It recognizes that the majority of survivors don’t view true justice as retribution or seeing their assailant suffer, but as holding their assailant accountable and having their experiences heard and believed.

The major flaw I see with this process, though, is that in order to be truly productive, it seems the assailant would have to admit that they have committed this crime or, at the very least, be open to a conversation in which they acknowledge and validate the accusations against them. I think in our culture of male entitlement and privilege (not to mention our more black-and-white framework of criminals and victims), it would be challenging to find assailants willing to admit to this and come to this process with an open mind. That’s not even to mention that a lot of (especially college-aged) young men have been so indoctrinated by violent porn and a lack of comprehensive/feminist sex education, and many don’t even understand what consent is or when they’ve violated it, that they might actually truly believe they haven’t raped someone even when they have.

Cox: I'm going to take a look at the Skidmore project and dig around elsewhere. I agree that the problem of "perpetrators not realizing they're perpetrators" is a huge flaw, and perhaps just a subset of society-wide blindness: men not realizing what it means to be a woman. Which is to say, I wonder if we will ever get much further in resolving the problem of rape culture if — gonna put this bluntly — men don't understand what it's like to live in fear of rape, to have one's body be coded, contested, owned, defined by others. We've made the furthest strides forward in our country when the dominant culture fully comprehends the injustice, finally sees themselves in the place of those whose rights have been violated, and finally sees themselves as part of the problem.

I think this is happening, slowly if not exactly surely — the information is out there, the language exists to explain the pervasiveness and insidiousness of sexual violence, and men are learning it. And I do believe that once the problem is fully comprehended, many (maybe even most!) men want to be a part of the solution. I'll point to this essay by Detroit Lions lineman DeAndre Levy as a great, heartening, recent example. It's worth reading in full, not because it's so brilliantly written but in part because it's not that well written. It's a little clunky and stiff, just the way it would sound if someone who wasn't a professional writer, but felt he had something really important to say, would write it. He's touchingly earnest and blunt in his plea for further conversation among men about sexual violence:

It’s important for men, especially in a hyper-masculine culture that breeds so many assholes, to stand up and challenge the values that have been passed down to us. This is not just a woman’s problem.

Perhaps the most amazing thing about the essay is his claim to have been woken up about the issue via the NFL's domestic violence outreach programs, which are hardly the model Skidmore is. Upon reflection, that also might be the most uplifting thing about Levy's essay: If even the NFL's halfhearted advocacy could move Levy so profoundly, then we should definitely aim for programs such as Skidmore's — but also know that every little bit of awareness helps in this cause. Every conversation matters.