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DOI: 10.5553/IJRJ.000059

The International Journal of Restorative JusticeAccess_open

Conversations on restorative justice

A talk with Mary Koss

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Albert Dzur, 'A talk with Mary Koss', (2020) The International Journal of Restorative Justice 468-485

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      Mary Koss is a Regents’ Professor in the College of Public Health at the University of Arizona. She published the first national study of sexual assault among college students in 1987. She was the principal investigator of the RESTORE Program, the first restorative justice programme for sex crimes among adults to be quantitatively evaluated (Koss, 2014). She has authored more than 300 publications and sustained consultations with national and international health organisations and governments. During 2016 she advised the US Departments of Justice and Education and the White House Taskforce on Campus Sexual Assault. The American Psychological Association has given her the Award for Distinguished Contributions to Research in Public Policy (2000) and the Award for Distinguished Contributions to the International Advancement of Psychology (2017). She was also the 8th recipient of the Visionary Award from End Violence Against Women International. In 2013, the Mary P. Koss Profile in Courage Award was created by the One in Four USA Organisation to honour her career contributions in using science to improve response to rape.

    • 1 Restorative justice beginnings: averting the head-on collision between victims of sexual violence and the adversarial process

      Dzur: Can you remember the point when restorative justice made sense to you? Did you have an ‘a ha’ moment?

      Koss: Yes, I can specifically remember it. I won an award from my professional association for empirical contributions to public policy in the year 2000. I was really happy to get the award, but I realised at that particular time that I wasn’t sure what public policy meant! And here I had to give an award address that was somehow about public policy. The rumination process started and I was thinking, ‘What do I know about public policy? What do I say about public policy?’ Now that I know more, I understand why they gave me that award, but at the time I didn’t, and I was just under so much pressure.
      I was finishing a study where I had followed women from within months of their rape through the first two years of their recovery. I looked at the cognitive changes that were taking place in their attributions of blame to themselves, to society, to the person who harmed them and then also to their larger life views, about their core beliefs: about whether people are good, whether there is karma – good things happen to good people – whether others can generally be trusted, those core assumptions we make about life. The outcomes of rape we used as markers of recovery were mental, physical and social health.
      I had been immersed in all this work for which the results were very clear – that self-blame was a very important driver in changing some of the fundamental ways you looked at life and through that means made your symptoms more severe and long lasting – had a greater impact on your mental health. The effect was much less noticeable on physical health or social health as it was on mental health. That is what I was writing about at the time. Now, we know that police questioning blames people, so what are we going to do about this? Blame is one of the worst things that as a process can get going in a victim who is trying to recover.

      Dzur: It’s called the adversarial process for a reason.

      Koss: One night I had a dream, and it was a head-on car crash. It was a nightmare dream. When I woke up my immediate association was with the adversarial justice system and what assists victims in recovering: these are inevitably going to have a head-on collision. The criminal justice system is about assigning blame and assigning it to someone. So how are you going to make that work in ways that are not inherently traumatising to a recovery process that is primarily run off the rails by self-blame?
      Just prior to 2000, when I had to give this public policy address, I started to think there must be a better way. I just happened to get asked to review a book, which I still remember, called Crime control and women. Sue Miller was the editor, and it had a chapter by Kathleen Daly and John Braithwaite that was on applying restorative principles, what I think at that time they were calling ‘communitarian justice’, to violence against women (Braithwaite & Daly, 1988). I read that article, and it was like, ‘I see the light!’ That is exactly my journey.
      My award address, published in 2000, was an attempt to walk people through the thought process of why an adversarial process is not likely to offer the healthful type of justice resolution (Koss, 2000).

    • 2 Law-caused harms and the unintended consequences of public policy

      Dzur: ‘Critogenic’ is a word that comes up in your writing to refer to the harm that the law is creating while it is trying to address another harm. This is like the term ‘iatrogenic’, in the medical field, to refer to doctor-caused harm.

      Koss: I didn’t make up that term. But I’ve used it. As an area of discussion, it had been known for a long time in the victimology profession that interacting with police, interacting with prosecutors, was a traumatising experience. In the rape literature we used to call it ‘the second rape.’

      Dzur: Walk me through how this is surfacing in your study. When you’re talking with women in this two-year period, how do they talk about the legal process? What sorts of terms make you think, ‘Oh, this is a second rape kind of situation’?

      Koss: The study I was doing didn’t have any questions about the trauma of criminal justice, because I hadn’t had that moment of connection. But if you look into the literature, there are people like Rebecca Campbell, who had nurses, doctors, police, prosecutors, a whole range of responders to crime rate themselves for how helpful they were to rape victims (Campbell, 2005). And then she had rape victims rate how helpful these people appeared to them. And most professions find themselves to be far more helpful than they are perceived to be!

      Dzur: So, your policy address suggested that the policy makers, the policy enforcers, were part of the problem.

      Koss: That inference you’re drawing I think is true, but I didn’t put all the pieces together until much later that policy was maintaining the centrality of adversarial justice in rape response.
      I received another award from the American Psychological Association in 2017 – so almost 20 years later – and it was for international advancement of psychology. And I thought, ‘Why did they give me this award? I never did anything international! What am I going to talk about that’s international?’ For that one, I took the approach of asking, ‘Who’s America to tell people what to do?’ I tried to take the point of view that most of our policymakers are educated elite people, beyond a certain level they are predominantly male, but still we’re making important decisions that affect diverse people based on what we, from our limited perspective, think they want (Koss, White & Lopez, 2017).
      I used an example of trying to replicate a programme that had been developed in the US in Afghanistan. It was completely laughable, or cry-able, because they were trying to have women come to hospitals, tell about their domestic violence experiences, and then police were notified without their knowledge. It was a giant disaster because people thought they were talking privately and didn’t know anything was going to happen; they didn’t view it as domestic violence. If they had wanted to talk to someone about things that were being framed to them as a family issue, they wouldn’t have chosen to come to a doctor or hospital for it; they would have chosen some other place.
      I had another section in there too about how if you look at who victims’ services serve in the US, it very much is the white, educated, resourced segment of our population. So my whole article was about victim voice and the need for going back to the grassroots, where the movement started in 1970s, to get reacquainted with what exactly it is that people are looking for.

      Dzur: The victims’ rights movement? Or the battered women’s movement?

      Koss: The movement I’m specifically referring to in the 70s started with consciousness raising: ‘Oh, there’s this thing called acquaintance rape, and it’s happened to a lot of us.’ You could refer to it as second-wave feminism. Both domestic violence shelters and rape crisis centres emerged from that, but they were all volunteer staffed by people who had had those experiences. These helpers weren’t out of touch with what victims want.
      As I started to dissect it, I realised that it was the 1994 Violence Against Women Act that really put victim services providers in bed with some very strange partners.

      Dzur: It cut off the grassroots connections.

      Koss: It really did. It started to make regulations, the staff had to have degrees, lived experience was devalued, and the agenda of services was created from the perspective of what ‘would I want or what would I do?’ What I would do? Well, I would go to a private therapist and pay a lot of money or go to a hotel or go on vacation. I don’t have to worry about where my food is coming from or about my housing security or about my kids.
      It made me realise that, first of all, we have a victim services system that is underfunded and mainly paid to be the spokes that feed into the criminal justice system. This design should put criminal justice system performance on display, because we’re spending an awful lot of money propping up an approach that may not be remotely related to what victims actually need or want if we listen to them.

    • 3 Seeing like an outsider: critical awareness of criminal justice and victims’ services

      Dzur: There are two aspects to what you’re talking about, one having to do with the voice and agency of the victim and the other having to do with this larger civic ecosystem that is either going to listen to women or not listen to women. Focusing in on the voice and the agency of the victim, do you think there was something about your status as an outsider to the world of criminal justice – somebody trained in psychology as opposed to public policy or law – that made you more attentive to the voice and agency of victims?

      Koss: I think undoubtedly that’s true and I think also that as an outsider you have to learn the system as it is unfolding itself before you. You don’t have a template for how this is supposed to work, or what people’s motivations are, or what they’re intending to accomplish by the steps they’re taking. You don’t have that, so you end up being a kind of critical observer. Critique can come from inside or from outside, but, yes, when you’re having to learn a whole new community, a whole new ecology, I think both the insider’s and the outsider’s perspectives are important.

      Dzur: Community organisers often talk about how professionals and experts assume deficits in people who have been victims or who are socially marginalised. I’m wondering if your training as a psychologist allowed you to see certain capacities in victims that weren’t being recognised by other parties in the criminal justice system.

      Koss: I think that you can critique both victims’ services and the criminal justice system around this issue that you’re raising. The criminal justice system pays insufficient attention to victim welfare and victim empowerment because that’s not their job.

      Dzur: They want to get the bad guy.

      Koss: In general, prosecutors don’t think of themselves as counsellors and typically face a large backlog of cases. If the trauma of the rape and/or the justice process upsets a victim, they get a pamphlet from a rape crisis centre and the room number of the victim advocate office. The choice of a non-adversarial process at the earliest moment allows criminal justice system actors to say, ‘Here’s an option for resolution and a place to talk to supportive person.’

      Dzur: You see community collaborations as often just symbolic?

      Koss: Yes. Often from the criminal justice perspective, victims are just evidence, they’re not people who need support. I’d like to be persuaded by this talk about trauma-informed interviewing, but no matter what you call it, adversarial questioning is still going to sting.
      In all fairness, I would also like to say that I wasn’t happy from a justice perspective with where the victims’ services field was going either. The criminal justice system does not necessarily see deficits in victims, they just see victims as unimportant other than their evidentiary value. It is the services providers who see the deficits. This is my profession, so I have to take some responsibility for it. We were really excited about post-traumatic stress disorder (PTSD). I worked in a veterans’ hospital when it first became part of the currency, and I think it came as a surprise to everybody that the largest groups of PTSD sufferers were women victims of violence.
      I was certainly part of the campaign for money and services to address all the PTSD that sexual assault was creating. But we got to the point where we were actually, in the name of empowering people, disempowering them. If I went to a crisis centre, it would not make me feel empowered to be told that I have a diagnosable mental illness. It wasn’t my fault, but as a result of something that wasn’t my fault, now I have a mental illness. It’s enough stress to come to terms with having a stigmatised identity as a rape victim, and now you’re handed the stigmatised identity of being mentally ill.
      I believe, obviously, that counselling and psychotherapeutic support is critical. And there is even a little bit of evidence in restorative justice, both in Kathleen Daly’s work and mine, that you have to work in concert with therapeutic service providers in order to make restorative resolution work. There has been overclaiming for how successful restorative justice conferencing can be, because all of the effects of it have been ascribed to the justice process. Whereas, we haven’t taken note of the fact that all the successful programmes had partnerships with service providers, most importantly for the people who did wrong, because these were justice programmes, but, also importantly, because they had support available for victims.
      I think it is interesting that very few victims in our restorative justice programme followed up on formal psychotherapeutic service offers except those who previously had mental diagnoses. It seemed that in the absence of adversarial traumatisation, you didn’t see as much need. I’m not saying you didn’t see immediate post-traumatic stress symptoms, because everyone shows those after a trauma, but you saw them resolving at a high rate on their own as opposed to solidifying into chronic PTSD. That is typical of reactions to traumatic stress, so I can’t claim that restorative justice made them improve, but it did not cause deterioration.

      Dzur: You are saying that the right kind of justice and the right kinds of therapy have to come together in a successful restorative justice programme.

      Koss: Yes, and I am extending that thought to both the survivor victim and the person responsible.

    • 4 Justice is only one need: towards constructive professional collaboration

      Dzur: How do you move away from the wrong kind of professional collaboration, where you have the criminal justice professional working with the victim as evidence and the victim services professional working with the victim as somebody with a deficit? How do you shift professional mindsets to work together in a different way? How did you manage to do that with the RESTORE Program?

      Koss: How I got people to work together with RESTORE, that’s a then question. The now question is, how do I envision people working together? I envision that the justice system needs a little bit more humility, to actually listen. If you read the literature about what women say their experiences with justice were, it’s clear: typical victims are poor, they do hourly work, they have childcare responsibilities, they are worried about their housing. Unfortunately, speaking in the US context, the social safety net has many holes. I’m doing a study with a graduate student on this right now because we have the suspicion that justice is actually a luxury. If you think about the hierarchy of needs, you’ve got to have the basic needs addressed before you can go to the luxury needs. Doing something about the person who harmed you, that’s not as immediate as putting food on the table.
      How I envision things now is that we have to put the victim and his or her needs at the hub of the wheel, where previously we had the criminal justice system. And then as we envision the spokes, that the victim needs feed out the spokes towards the services that are meaningful and needed by them. That is going to be a matter of individual prescription, because different victims have different needs.
      I say ‘humble’ about the criminal justice system because justice is only one need. We can’t elevate it over all other needs.

      Dzur: In your own experience with putting together a programme, what do you think were the barriers to achieving that kind of humility?

      Koss: When I first got the grant for RESTORE, my intention had been to do it on a college campus. I started having conversations with the Dean of Students after the grant had already arrived. She said, ‘Well, we can’t do that because we have to consult with the attorneys.’ All I could say was, ‘We’ll stop this meeting and have another one when the university attorneys can be present so we can work that through.’ The dynamics were so strange because the Dean of Students would say, ‘No we can’t do that, because it would be a privacy problem.’ And the university attorney would respond, ‘Well I think we can work that out.’ And the Dean would bring up some other objection. And the university attorney would say, ‘Yeah, but I’m thinking there’s a way of working around that.’ At a certain point I realised I was not dealing with something that can be resolved with facts or with rational discussion. I’m dealing with some kind of attitude thing on the part of the Dean of Students.

      Dzur: Was the attitude that this could be a public relations problem for the university?

      Koss: No, it was that I would harm victims, that I was trying to soften the university’s response to sexual assault, and that I was going to violate their privacy.

      Dzur: And it didn’t help that you had victim advocates on board?

      Koss: No, it didn’t help. I had been working closely with the rape crisis centre in my town, so I had a pre-existing relationship with them. After I ran into the obstacles with the university, I went to the county attorney, whom I knew socially. I walked into her office and said, ‘I’d like to do this restorative justice project with sex crimes, and I already have the money.’ She handed me this brochure and said, ‘We already do restorative justice through teen court, and I’m a big proponent of it. So let’s do it.’ And she designated one of her prosecutors to work with us.
      Then, I formed a relationship with a law professor, who was also interested. She is now re-vivifying RESTORE in Baltimore, Maryland, 20 years down the road. We worked with the prosecutor, we worked through all the legal issues, the double jeopardy, the sharing of information, the record-keeping, all sorts of legal stuff that also has human subjects’ importance. This was at a time when restorative justice for sexual assault was considered an experimental procedure lacking a strong empirical database that it works with victims of sexual assault and is safe. It would probably still be considered sceptically. Just think how few studies empirically show that you can work with victims of adult sex crimes without causing harm.

      Dzur: So you had to put together a professional coalition.

      Koss: I did. I had to go to the police, to the civil bar, to the defence bar, to the public defenders. All of those people had to get on board. I held a lot of meetings.

    • 5 Criticism of the use of restorative justice for responding to sexual violence

      Dzur: And the project did receive some criticism. People are reluctant to think of restorative justice as an appropriate response to sex crimes.

      Koss: Let me tell you some of my favourite insults! One was that I have prostituted my intelligence by proposing and doing this work. One was that the stress of thinking about the fact that I was doing the work gave the person cancer. The American Bar Association asked me two weeks ago to participate in a webinar that 1,500 people signed up for. It’s on YouTube now. I don’t think this was supposed to happen, but the audience comments were flashing across the screen. And there was this one person who kept saying, ‘Mary Koss is a terrible person. She does terrible things. Google her!’ So I’ve taken flack for this.

      Dzur: How do you have a conversation with someone who comes to this with a very sceptical attitude?

      Koss: Well, first of all, you have to use your best restorative principles of humble listening and openness. I remember I got a call one day from a man in Malaysia – and can you imagine how expensive this call was! He was a men’s rights person and was very critical. I tried to talk with him in a calm voice.

      Dzur: You were being ‘matronising’!

      Koss: I’m not generally a quiet, calm person, so it did have a certain acting quality to it. But, finally, at the end, he said, ‘You’re not anything like I thought you’d be.’ And I think he went away as a proponent. But oftentimes that doesn’t happen. Just as I couldn’t have a dialogue with the Dean of Students 20 years ago because she was coming from a place that wasn’t rational; it was emotional. I don’t want to be insulting here, of course. The same thing is true today with some of the critics; you just have to accept the fact that there are always going to be people who disagree with whatever it is you’re promoting.

    • 6 Reconceiving victims’ views of apology and responsibility

      Dzur: Your study had some unexpected findings for restorative justice theory. In particular, I was struck that the role of apology was not as big for victims as the restorative justice literature would have predicted.

      Koss: Right. I don’t want to say that the other literature is wrong, but it perhaps suggests to us that sexual assault does have certain unique elements.

      Dzur: Your research reported that many victims thought that an apology wasn’t worth the paper it was written on.

      Koss: Absolutely.

      Dzur: Which is commonsensical. What did the literature get wrong about the role of apology?

      Koss: Maybe, it’s because apologies are mainly important to the perpetrators. If you have opinions coming from a group of people whose primary experience is with perpetrators, they may overvalue apologies without realising that that’s not necessarily what victims want.

      Dzur: We could have our cake and eat it too, of course. We can be sympathetic to both the literature and the findings by saying that the concept ‘apology’ is big and it includes within it a valid acceptance of responsibility. So if we translate the word ‘apology’ to mean ‘a valid acceptance of responsibility’, that’s what the victims did want.

      Koss: Yes. And you know what, I hadn’t even thought about it that way before. But I completely agree with the way you are framing it.

      Dzur: What would a token of a valid acceptance of responsibility be, do you think? What is a victim looking for in terms of evidence of responsibility?

      Koss: Creating a process where they can hear the wrongdoer say, ‘This is what I did. I take responsibility for what I did. What I did was not caused by you.’ I really think that and maybe one additional element, which is the very existence of programmes where you walk in and there’s an assumption of harm. I think we all agree that restorative justice should never be coerced. If it’s going to be voluntary, by definition you’re only going to get wrongdoers who are accepting responsibility. Now they might not say, ‘I’m a rapist.’ But they accept that they did these actions that have been harmful.
      There is oftentimes a great area of agreement between victims and wrongdoers about what happened. Where the differences emerge is in the perceptions of consent and impact. A lot of times you have to correct guys and say, ‘No you did not have sex with her. You compelled unwanted sex.’

      Dzur: That’s interesting because it seems to me that it helps to connect these two motivations for victims, namely that the wrongdoer accepts what they did as wrong and not do it again.

      Koss: Right. Both of those seem really important.

      Dzur: Is that the victim’s logic? That if I can get this guy to accept what he did, maybe he won’t do it again?

      Koss: Yes. Both of those things were true. And meaningful. There was an altruistic element and a personal element.

    • 7 Victim motivations to be involved in restorative justice: altruism and civic duty

      Dzur: What you are calling the altruistic element really interests me. Some studies suggest that many women involved in restorative justice for these kinds of offenses have a kind of good citizen view of why they’re doing it.

      Koss: Right.

      Dzur: And they resent the fact that they’re treated like evidence. They, in fact, don’t feel like they’re being treated like a good citizen by the prosecutorial staff.

      Koss: Exactly. I strongly agree with that. The laws are supposed to codify our community norms, and so when someone goes to the justice system to say our community norms have been violated, they expect to be much more valued.

      Dzur: ‘Altruism’ is a good word, but it is also ambiguous. It strikes me that victims, when they get involved in a programme like RESTORE, they want the world to change. They don’t just want to do good in the world; they want the world to be less violent towards women.

      Koss: Some of this is imposed. Remember when I was saying that getting validated was imposed by the entry criteria of not making restorative justice coercive? That was speaking from the wrongdoer’s perspective. They had to admit responsibility. But from the victim’s perspective, if you want vengeance, if, for example, you say, ‘I want him to go to prison and be raped so he can experience what he did to me,’ you are going to get screened out of a restorative justice programme because that goal is not only repugnant, it’s not obtainable. The same is true with the victim who says, ‘The only way I can be healed is by getting a bunch of his money’, as you saw in a number of high-profile cases where men paid millions of dollars. If that’s the outcome you’re seeking, if it’s either vengeance or compensation of a significant degree, then you’re not going to get into a restorative justice programme. I think you’ll probably agree that those two groups of people are not altruistic.

      Dzur: Yes, correct.

      Koss: So the fact that when you look at victims who are in restorative processes, the fact that altruism is a motivation may be an artefact of the fact that we’ve ruled out the other people.

    • 8 Community involvement in restorative justice

      Dzur: You made the deliberate decision to construct RESTORE as a community-based programme. How was that manifest in the way it operated?

      Koss: First, I should say something about what RESTORE was. I promised never to tell anyone this, but it is an acronym for Responsibility and Equity for Sexual Transgressions involving a Restorative Experience. My association was the restore function of a computer. When a crash happens and you are devastated, it is such a relief to find a current back-up file in the cloud, click Restore and watch your computer reconstruct itself, not perfectly and not just like it was before, but definitely better than if you threw it at a wall. Do you see the analogy between restorative and adversarial justice?
      RESTORE was a demonstration project funded by the US Centers for Disease Control and Prevention, because sexual violence is a form of injury under their portfolio. It was carried out in Pima County, Arizona, which borders Mexico, in collaboration with a wide variety of community constituents, but most critically with the County Attorney’s Office. Referrals to RESTORE were crimes reported by police, investigated, submitted to prosecutors, and deemed sufficiently provable that they were referred pre-charging for felony sexual assaults and post-plea for misdemeanours. Of 66 referrals we were able to contact, where the victim gave consent, the person responsible accepted responsibility and agreed to participate; we completed 22 conferences, equally divided between felonies and misdemeanours. The programme was empirically evaluated both quantitatively and qualitatively. Considerations in programme design, detailed steps to implement the programme and quantitative and qualitative evaluations of the outcomes are documented in a number of publications (Bletzer & Koss, 2012, 2013; Koss, 2011, 2014; Koss & Lopez, 2017).
      In a nutshell, RESTORE had four stages: referral/consent, preparation, conference, supervision and reintegration. Conferences were face to face, involving primary, secondary and community victims as well as the direct victim and person responsible. Strict conduct rules to protect safety and prevent re-abuse, known by all in advance, governed the order of discussion and the boundaries of acceptable behaviours. Trained facilitators presided. The case manager was present but did not participate except in signing the mutually agreeable redress plan that they would henceforth supervise. The redress plan had boilerplate components to ensure that the consequences were not too lenient and other components that made the consequences meaningful to the victimised. Supervision lasted twelve months, during which responsible persons were required, among other activities, to undergo sex offender counselling. The goal was to complete the redress plan within twelve months, at which time the person responsible prepared and publicly presented a statement of reflection and reintegration, which is far broader than saying an ‘apology’.
      Now to your specific question about how we worked to link RESTORE to the community. First, we did not close the conferences to outsiders. We had vetting, and everything was run past the victim. Was the victim OK if such and such a person was present? We had a police officer, a prosecutor, a corrections officer. We had attorneys who were not allowed to participate, but they were there to observe the process. As I said earlier, justice is supposed to apply the norms of the community that are codified by law. I felt it was important that we didn’t operate a private justice process that couldn’t be observed by anyone from the community.

      Dzur: Did the people who were involved have to be approved by every victim?

      Koss: Yes, because they were different people. The same people did not come every time. I’ll give you an example of a case when a victim said, ‘No that would not be OK.’ One wrongdoer wanted to bring something like fifteen guys from his fraternity. And we had to say, ‘No, that can’t happen.’

      Dzur: Did he intend that they would suggest by their very presence that he was ordinarily a stand-up guy?

      Koss: I think that’s a charitable interpretation. I thought it was meant to be intimidating.

      Dzur: Why be part of the process at all if you’re going to do that?

      Koss: Well, just because a person has accepted responsibility does not mean they have completed their journey into becoming a better person!

      Dzur: Now, that’s charitable!

      Koss: We didn’t require a guy to say, ‘Yeah, I admit I’m a rapist.’ But by the end of twelve months, they had had supervision and therapy and had met with a community board. And this gets to the second part of your question. We made it a community-based process by having a community board that met with the person quarterly or more often if needed, and it was that board that solely had the responsibility for making the decision, ‘Does this person graduate successfully, are they successfully exited from the programme? Or should they be terminated from the programme because they are not in good faith complying with the redress terms that they agreed to?’ We wanted that to be a community decision because the people would then go back to the community.

      Dzur: In your ideal world, where lots of little sustainably funded RESTOREs are all over the state of Arizona and other states, what would the make-up of the community board look like? Who would you like to see on these boards? Should members get off the board every year and new people get on?

      Koss: In a way, that board is like a circle of support. It is not meant to be a parole office. We had a case worker who handled the week-by-week supervision and did the risk assessment and that stuff. We really tried to conceptualise the community board as that part of the restorative philosophy that states that you don’t want to break a person’s connections to the law-abiding community. You don’t want to outcast them and hope they can at some point be reintegrated as a model citizen. We thought about that board as made up of people who were challenged and interested by the idea of interacting with people who had caused sexual harm and to try to assist them in becoming a better person.

      Dzur: And back to our earlier discussion of professionals in distinction to regular citizens, you would hope that the board has some people who were just established members of the community as opposed to somebody who’d worked in the prosecutor’s office.

      Koss: Absolutely. You wouldn’t want the same parties there who would be present in a criminal justice type of proceeding. In fact, because we were experimental and didn’t want to take super high risks, we did only accept people who had human services training. They were used to working with people. But we didn’t restrict what kind of human services training it had to be. This was true of both our facilitators and our community board. For our facilitators, we had some police, we had some probation officers, we had some people who were counsellors or therapists, and on the community board we had even a broader variety of people. People who worked in the urban league, people who worked in settings involving homeless people.
      If I got more opportunity to do this on a bigger scale, I would expand that circle. Think about the churches that have those circles of support, those CoSAs [circles of support and accountability]; there are many people who are motivated to try to help someone who has done wrong to get on the right path.

      Dzur: The more people who get involved in this, the more widespread the awareness of sexual violence as a community problem. Getting back to our earlier conversation about victim voice and the grassroots momentum that buoyed feminism for some time: now we’re seeing it again with the #MeToo movement. Restorative justice is a very practical way of engaging the community in an eye-opening exercise in what’s happening all around us.

      Koss: Yes. Absolutely.

    • 9 Expanding the experiment

      Dzur: Back to the ideal world, would RESTORE version 2 take on other kinds of cases or expand its range of action in any way?

      Koss: There were many instances of sexual assaults that we were not allowed to take by the prosecutors. The prosecutors set the eligibility standards. And also, secondarily, the human subjects committee placed limitations. I’ll give you an example. The prosecutor really wanted us to take 15-year-olds who were being declared ‘mature minors’ and put into the adult justice system. And the human subjects committee would come back and say, ‘You can’t have 15-year-olds. They’re children!’ And we were never successful in allowing persons under age 18 years.

      Dzur: Apparently, bad stuff doesn’t happen to children.

      Koss: It was like, ‘We don’t care if the justice system is treating them like adults. They’re children. We don’t care if they’re at risk of going to a state prison with hardened felons. They’re children.’ I couldn’t believe this was happening. Of course, we used the argument, ‘Look, they’ve used it in Australia for a long time with juveniles, and in fact the only evidence that it works comes from juveniles.’ One change I would make is I would definitely want to take younger people.
      We were also not allowed to take people who had a prior history. Many people have suggested to me that there is potential for people who have already been through a standard process and it didn’t work for them. They could benefit from a restorative process the second time. It has been suggested that we should loosen the criteria to say a person could have had a previous arrest for some kind of sexual misconduct.
      Those are two particular changes that I would make in the sex crimes I would like to see included, which we couldn’t include at the time. I would have also liked to see people who were having plea bargains made, with the victims’ permission, have restorative process included in their plea agreement.

      Dzur: As a kind of a default?

      Koss: Only if it was acceptable to the victim. Under the United States system of sex offender registration, little is served by getting someone to plead guilty to something that will haunt them for the rest of their lives. I would prefer to see a restorative process in plea agreements, so that if people complete it, they can be reintegrated. There’s a prominent man in our town, and if you consult the registry it says he is a child abuser. He is 50 years old. When he was in his early 20s he did something with a student. He was also a student at the time, but he was in a teaching assistant role, and what he did was wrong because the student was not over 18. But if you look him up today, it says this 50-year-old man is a child abuser of 17-year-olds. One of the reasons we benefit from his expertise in our community is that this inaccurate representation of his status has meant that he can’t be hired anywhere else!

      Dzur: There is a RESTORE in New Zealand. Does this differ in any interesting ways from the American project?

      Koss: It does, and it has given me ideas for where I would move forward if I got the chance again. Actually, the project that my graduate student is working on right now is a collaboration with the state coalition against sexual and domestic violence. They want to change their public persona to being a healing centre or a wellness programme, to focus with more empowering language than with the deficit language of treating symptoms, giving counselling and pushing criminal justice. They are viewing restorative services as being under the roof of the recovery services that they would like to offer. And that is how the RESTORE programme in Auckland is set up.
      That is an old idea, and I think it is a very good model. They do take referrals from prosecutors, and I believe they get some of their funding from the state for doing that. But they also open themselves up to taking self-referrals. Believe me, there are a lot of people like this, where the wrongdoer is not a bad person. We have at college age so many younger students who just had no idea that having sex with a woman who was unconscious was wrong. And when they get in trouble they instantly accept responsibility and are strongly motivated to do what they can to deal with the harm they caused. Why should a victim survivor of this incident be offered only criminal justice where the perpetrator will be advised to deny guilt?
      I like that victim services coalitions are increasingly saying, ‘Look we have 30 years of experience. Criminal justice is not doing very much for rape victims, and we’re going to take it back. We see it as part of recovery, and we see it as something that people should be able to choose independently.’ It’s not an either/or choice, but people should be able to have an avenue for justice that doesn’t involve a criminal process.

      Dzur: You brought up the college student, which gets back to our earlier theme about the resistance of college campuses to restorative justice for sexual violence. It seems crazy, because sexual assault on campus is an epidemic, but there’s a lot of resistance among administrators.

      Koss: Yes, there is.

      Dzur: What needs to be done to get through that?

      Koss: We’re looking at the unintended consequences of policy. Policy is even worse than what we do as scientists. When we do experiments, we have to have parameters around them for safety. And also, we do it on a small scale until we are sure it’s helpful. In contrast, public policy just experiments on the whole country without fully anticipating the consequences.

      Dzur: We’re in a giant public health experiment right now.

      Koss: We are. And the Department of Education Office of Civil Rights has, with their guidelines, increasingly experimented by imposing behaviours on institutions of higher education. The student conduct profession had gotten to a point, just before 2001, of decriminalising their language and making sure the conduct process was not quasi-criminal justice. That stance was enlightened by the principles of the student development profession. The DOE Office of Civil Rights 2011 letter came out and put a screeching halt to all that. It was like telling doctors how to practice. An unintended consequence was that too many lawyers wrote the guidelines, and then universities had to hire too many lawyers to interpret the guidelines. It is almost a repeat of what I said about victim services, that as they get more professionalised they lose touch with victims. That is what has clearly happened with how universities are mandated to behave under the US Title IX federal civil rights law guidelines.

      Dzur: Could a university experiment with a RESTORE programme today, do you think?

      Koss: Well, I’m so mad. I gave up my high school reunion and lost lifelong friends to go to the Office of Civil Rights with a group of people and try to lobby to put the two words ‘restorative justice’ into the new guidelines that Secretary of Education Betsy DeVoss just issued. And the furthest these tightasses could move themselves was to call them ‘innovative approaches.’ So, the pushback starts at the top.

    • 10 The present: promising trends and much possibility, but few fully restorative practices

      Dzur: We’re living at a moment of both resistance to change and great energy to transform harmful and broken down systems.

      Koss: There are so many promising and connecting trends going on right now. Restorative justice meets up with intersectionality, it meets up with mass incarceration, it’s part of the defunding the police discussion. It suddenly became a lot more complex. I used to be able to talk about this subject solely with people whose major commitment is to victims. And suddenly, the circle of interest has become a supernova. In this moment there is a much wider world, more nuance, more voices and perspectives to be thinking about.

      Dzur: This really is a turbulent time. It is weird, because it feels like restorative justice has moved from the margins of public discourse to the centre. This is a very positive place to be, but also nerve-wracking.

      Koss: It is, because I think in some ways, we are not ready to be there.

      Dzur: You are right. We don’t have the established practices.

      Koss: We’ve been held back and kept on the margins so long. Now all of a sudden, we’re in the spotlight, but we skipped a whole bunch of evolutionary stages. I believe everyone in the field is well intended, but I don’t think we 100 per cent have our act together.

      Dzur: What’s on the horizon, do you think, for those of us interested in restorative justice? How do we get our act together?

      Koss: There is so much going on right now that is under the restorative justice umbrella. There are a number of initiatives that I feel a little critical of because they’re patch-ups. They’re add-ons intended to make the walk through hell slightly less traumatising.

      Dzur: What do you mean, exactly?

      Koss: If you talk to a lot of people in the criminal justice system, they’re saying, ‘We’re already doing restorative justice.’ They’re wondering why you’re coming there advocating for something they’re already doing. And when you ask for examples, they say, ‘Well we have a drug court. We have a domestic violence court. They can make impact statements. We have a victim rights office. We have victims’ compensation.’ They think of all that stuff as restorative justice. I think they’re good things but I don’t think it is correct to call them ‘restorative justice.’
      And then, going to some other space under the umbrella, there are things I think are basically good, but they’re not fully restorative. For example, going to prisons and having victim impact panels is a very good idea. But it is not fully restorative. I’m really happy people are getting these other methodologies underway – practices like community dialogues and circles – and at the same time I believe it is giving a sense of reassurance that restorative justice is happening. Whereas, what for a long time has been described as ‘fully restorative’ models of restorative justice, they’re not happening. Or they’re happening at a very tiny scale at just a couple of places.

      Dzur: What do you mean, exactly, by ‘fully restorative?’

      Koss: My understanding of ‘fully restorative’ is that, first of all, it is intended to reach resolution. It’s the entire process that goes from identification as a victim and identification as a wrongdoer and moves forward from there. It involves actual parties, either directly or through the use of a representative designated by the victim, coming together to voice the impact, state what was done wrong, and how the impact of those acts is now understood, and then coming together on a redress plan that will achieve the intended results, which from the wrongdoer’s perspective is so they can feel good about themselves as a person again, and from the victim perspective is so they can get closure, so they can reclaim their power and that they can feel they did good because the chances are lowered this person will hurt other people.

      Dzur: For you, what’s on the horizon seems to be trying to make a stronger argument for fully restorative programmes to capture the moment we’re in.

      Koss: Yes, that’s essentially where I’ve been advocating all along. That’s where my interest is. My interest is in fully restorative resolution.

      Dzur: Well, the month of November might make this more or less likely.

      Koss: You know, I testified in 1991 before then Senator Biden, when he chaired the Committee on the Judiciary, using empirical data to advocate for the first Violence Against Women Act originally passed in 1994. I have pictures with him that have now turned sepia and appreciation letters that are a little yellow. I recently had a conversation with Senator Cory Booker. From the perspective of the Black Lives Matter, anti-mass incarceration and rethinking the scope of policing, his office is very invested in restorative justice. Yesterday Anita Hill emailed me because people who work with sexual harassment are looking at restorative justice. Good things could happen.

    • References
    • Bletzer, K. & Koss, M.P. (2012). From parallel to intersecting narratives in cases of sexual assault. Qualitative Health Research, 23, 291-303. doi: 10.1177/1049732311430948.

    • Bletzer, K. & Koss, M.P. (2013). Restorative justice and sexual assault: outcome appraisal through textual analysis. The Open Area Studies Journal, 5, 1-11. doi: 10.2174/1874914301305010001.

    • Braithwaite, J. & Daly, K. (1988). Masculinities, violence and communitarian control. In S. Miller (ed.), Crime control and women: feminist implications of criminal justice policy (pp. 151-180). New York: Sage.

    • Campbell, R. (2005). What really happened? A validation study of rape survivors’ help-seeking experiences with the legal and medical systems. Violence and Victims, 20, 55-68. doi: 10.1891/vivi.2005.20.1.55.

    • Koss, M.P. (2000). Blame, shame, and community: justice responses to violence against women. American Psychologist, November, 1332-1343. doi: 10.1037/0003-066X.55.11.1332.

    • Koss, M.P. (2011). Restorative justice for acquaintance rape and misdemeanor sex crimes. In J. Ptacek (ed.), Feminism, restorative justice, and violence against women (pp. 218-239). New York: Oxford University Press.

    • Koss, M.P. (2014). The RESTORE Program of restorative justice for sex crimes: vision, process, and outcomes. Journal of Interpersonal Violence, 29(3), 1623-1660. doi: 10.1177/0886260513511537.

    • Koss, M.P. & Lopez, E. (2017). The RESTORE Program of restorative justice for sex crimes: a case study in restorative justice with therapeutic components. In E. Zinsstag & M. Keenan (eds.), Restorative responses to sexual violence: legal, social and therapeutic dimensions (pp. 212-228). London: Routledge.

    • Koss, M.P., White, J. & Lopez, E. (2017). Victim voice in reenvisioning responses to sexual and physical violence nationally and internationally. American Psychologist, 72(9), 1019-1030. doi: 10.1037/amp0000233.