Year in Action

Why We Need a Truth and Reconciliation Commission on Sexual Violence

Together, we can confront our history and envision a better future

BY


The Walrus/Carin Marzaro
The Walrus/Carin Marzaro

The metaphors for #MeToo describe a movement without destination. A tipping point, not an arc. A wave, not a sea change. It should feel like progress, but every politician, executive, and “shitty media man” knocked off his perch only further proves the obvious: we live in a culture of sexual violence. Dominos are falling but to what end? Unless we move quickly to formalize this reckoning, #MeToo will be remembered for outrage, not understanding, for retribution, not transformation.

We rely on the justice system to defend people against rape culture, but the system works incrementally, if at all. The rare conviction of a sex offender hasn’t just failed to promote gender justice, it’s failed to deter the same crime by the same offender. Studies suggest that recidivism rates hover between 12 and 14 percent in the years immediately following release, but that they can increase over time—jumping to just under 25 percent at fifteen years.

Whether there’s a conviction or not, adversarial legal procedures often fail to deliver on what survivors need most: atonement and healing. Offenders are incentivized to act in bad faith, to hide in the shadow of reasonable doubt. Meanwhile, survivors are saddled with the burden of proof. After disclosing their trauma to a roomful of strangers, survivors are clinically interrogated and, almost as a rule, accused of lying. Granted, limited protections are in place to make it difficult for attorneys to ask survivors about their sexual history or what outfit they were wearing, but the underlying plaintiff-defendant dynamic is about discrediting the accuser.

This helps explain why most survivors of sexual assault never make it to court. Even before litigation, the first firewall is simply filing a police report. Last February, the Globe and Mail released the “Unfounded” series, an exposé of biased policing unfairly dismissing more than 5,000 cases of sexual assault every year. Reporters found that on average, one out of five sexual-assault reports are dismissed as unfounded—a far higher rate than other types of crime. (Researchers have pegged the actual rate of false sexual-assault allegations somewhere between 2 percent and 8 percent).

Is this really the best we can do?

Jo-Anne Wemmers, a researcher at the University of Montreal’s International Centre for Comparative Criminology, has drawn attention to the mounting demand for alternatives to the traditional criminal-justice process. At a panel discussion hosted by Justice Canada in March 2017, Wemmers noted that among survivors who have reported sexual assault, one in four specifically expressed interest in restorative justice—that is, any number of non-adversarial opportunities outside the courtroom for survivors, offenders, and communities to collectively heal after a crime. The Department of Justice maintains a directory of over 400 such programs nationwide, including post-sentencing mediation between offenders and survivors, support networks for survivors, and conferences for families and communities.

The heinous nature of sexual assault makes it tempting to dismiss any effort to move forward together. But social progress has never been achieved by people in isolation. And isolated is exactly how most survivors and offenders wind up.

With its emphasis on democratic deliberation and national soul-searching, a truth and reconciliation commission on sexual violence offers a compelling alternative. State-sponsored and independently organized TRCs have convened people worldwide to address some of the most severe and pervasive human rights violations in history, from civil wars in El Salvador and Sierra Leone to forced disappearances in Argentina, Bolivia, Chile, and Nepal to ethnic cleansing in Rwanda and the Solomon Islands to, most famously, apartheid in South Africa. Canada’s own seven-year TRC on residential schools addressed “the injustices and harms experienced by Aboriginal people and the need for continued healing.”

The injustices and harms and need for healing evidenced in the past three months (let alone by four waves of feminism) warrant a similar national reckoning—not just in print and on the web but it in our homes and on our streets. A TRC on sexual violence would give survivors, offenders, allies, bystanders—by now, every one of us—the aegis and organization to confront our history and envision a future that all people can share.

Past commissions didn’t prevent future crimes against humanity, and it would be magical thinking to equate a TRC on sexual violence with the end of misogyny. But merely as a signaling device, a TRC would give gender justice the categorical urgency previously attributed to segregation and genocide. As documented in those circumstances, TRCs offer communities a viable way to deliberate and propose practical solutions. We Canadians have good reason to hope that such proposals would be taken seriously. In 2015, candidate Trudeau promised to implement all ninety-four calls to action from the TRC on residential schools.

Besides providing a path forward, TRCs help bridge the gap between justice and healing. The key is normalizing modes of conflict resolution in which the acts of witness and testimony have purposes beyond punishment. Those higher purposes, such as recognition, respect, and reciprocity, can feel deceptively straightforward—but they are possible.

Recognition begins with an official statement acknowledging that women have been degraded and disregarded, attached to a wider apology. Recognition could be extended beyond words, by way of a memorial or day of observance. Contrary to #NotAllMen rhetoric, recognition isn’t about villainizing men, or dwelling on past injustices, or encouraging victim psychology. Rather, by recognizing how we damage ourselves and each other, we establish healthier norms for future generations.

Violating such norms is occasionally punishable, as the #MeToo movement is demonstrating, but changing deep patterns of aggression and complicity requires more than retribution. It requires respect. In the wake of #MeToo, much of what passes for respect for women is closer to tolerance or chivalry. What I’m talking about is an authentic regard for the value of others. Real respect cannot be forced, but it can be cultivated by acts of reciprocity.

If truth and reconciliation commissions facilitate respect and reciprocity from the top down, restorative-justice conferences do so from the bottom up. The two processes are complementary, mutually reinforcing, and, indeed, were vital during South Africa’s transitional period, for example. Different versions of restorative-justice conferences use different methods to activate respect and reciprocity, but the core criteria are that people meet in person, process their grievance, and reckon with their actions.

In Langley, British Columbia, the Victim Offender Mediation Program (akin to South Africa’s Victim Offender Conferencing Project) facilitates face-to-face meetings between survivors and incarcerated offenders, to address “remaining accountability, healing, and closure issues for those involved in or affected by traumatic criminal offences.” Survivors who are not interested in meeting their offender may opt to receive a letter of apology, conduct indirect communication through a caseworker, or otherwise participate in a different kind of restorative-justice conference.

The circle model, adapted from Indigenous approaches to restorative justice, convenes participants from the community to discuss a particular issue. Participants agree to guidelines ensuring that everyone has an equal opportunity to speak. The documentary Hollow Water depicts how circles were used by an Ojibway village in Manitoba to combat epidemic sexual abuse. According to Public Safety Canada, “Circles of Support and Accountability (CoSA) have been empirically proven to reduce sexual reoffending and help reintegrate sexual offenders into their community after completing their sentence.”

In Vancouver’s Downtown Community Court, we have a working example of restorative justice designed for offenders who suffer from complicating mental health problems, such as addiction, alcoholism, and anxiety—problems, it should be pointed out, that offenders have cited to explain their behaviour (respectively, Harvey Weinstein, Robert Scoble, and Jian Ghomeshi). At the Downtown Community Court, sentencing judges work closely with health and social services workers “to help offenders make long-term changes to their behaviour.”

To skeptics, restorative justice might sound like pseudo-science, but research indicates otherwise. In 2014, the Journal of Experimental Criminology published the results of a study in which eight researchers tested survivors of robbery and burglary for symptoms of post-traumatic stress disorder (PTSD). In addition to going through the criminal justice system, one group of survivors also participated in face-to-face restorative-justice conferences with offenders; the other group did not. Among survivors who participated, 49 percent fewer showed symptoms of post-traumatic stress. The authors concluded that face-to-face meetings “empower victims and…in turn provide emotional closure and reduce the psychological stress associated with the crime.”

The trauma of robbery and burglary does not map neatly onto that of sexual assault, but the prevalence of PTSD alone makes restorative justice programs worth trying. Figures cited by the McGill Journal of Medicine in 2006 show that an estimated 94 percent of female assault survivors experience PTSD symptoms within two weeks of their assault, and 50 percent of female survivors suffer from PTSD for the rest of their lives. (By comparison, according to Veterans Affairs Canada, up to 10 percent of war zone veterans have PTSD, although many more can experience PTSD symptoms.)

According to a 2009 report published by Public Safety Canada, both survivors and offenders can derive substantial psychological benefits from participating in a restorative-justice program. Short of PTSD, ordinary feelings of fear, vulnerability, anger, shame, depression, and anxiety all dropped significantly among survivors. Among offenders, rates of anger, suicidal ideation, and confusion also decreased.

In 2016, a New York–based organization called Black Women’s Blueprint held the first independent tribunal of the Black Women’s Truth and Reconciliation Commission. Taking place over several days at the United Nations in New York City, the tribunal was a meaningful step toward recognizing the human rights violations historically inflicted on women and girls of African descent in the United States. Lacking government aegis, the commission was under-reported, and as of this writing, Black Women’s Blueprint conceals the identity of its board of directors “due to the recent social climate.” Despite too few resources and too much adversity, the commission has convened meetings in New Orleans, Mississippi, Chicago, and Washington, DC.

Reading about the New York tribunal, I was struck by how different this gathering was from the virtual conversation about #MeToo. One audience member recalled crying as she listened to the testimony. “I felt courage welling up inside me; strength from their strength, hope from their hope,” she wrote. “[It] felt like a rising up—rising up in the face of trauma, violence, and systemic, long-term, cruel racism and sexism. Rising up as individuals and rising up as a community.”

For those of us following #MeToo, the daily news is a source of outrage, but does it change the way we live? The urgent work of transforming our culture requires that we come together and talk, heart to heart. Is it possible for a boy growing up in Toronto to learn from a woman who was assaulted decades ago in Vancouver?

I think so.

Fifteen years ago, I attended a discussion led by Elie Wiesel and archbishop emeritus Desmond Tutu, about “the politics of apology.” I was half a world and half a century removed when I had the opportunity to ask Tutu what forgiveness meant to him. If the archbishop’s answer sounded like a tall order, it was one he embodied as the chairman of South Africa’s Truth and Reconciliation Commission.

“Forgiveness,” he said, “is when I no longer demand payback from you.”

Kim Samuel is President of The Samuel Family Foundation, Professor of Practice at McGill University's Institute for the Study of International Development (ISID), and Policy Advisor at the Oxford Poverty and Human Development Initiative (OPHI).




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