A New Form of Justice for Rape Survivors

Her research sparked the first great campus-rape debate 30 years ago. Now she has a bold new idea to address the problem. Why can’t she get policymakers to take it seriously?

This image can only be used with the Amelia Thomson-DeVeaux article that originally ran in the 5/2/2015 issue of National Journal magazine. Mary Koss is a Regents' Professor in the Mel and Enid Zuckerman College of Public Health at the University of Arizona
Add to Briefcase
Amelia Thomson Deveaux
May 1, 2015, 1 a.m.

On a Janu­ary af­ter­noon, in her of­fice at the Uni­versity of Ari­zona, Mary Koss is show­ing me the me­dia clip­pings from her turn in the spot­light — a mo­ment that is now more than two dec­ades old. Wa­tery winter light streams through the blinds as she combs through the bot­tom draw­er of a file cab­in­et that stretches the length of the room, where she stores the hun­dreds of stor­ies that have been writ­ten about her re­search, nearly all of them between 1985 and 1994. With French-man­i­cured fin­ger­tips, she pulls out a creased copy of People magazine from Decem­ber 1990. “Here’s an­oth­er one that looks like it could have come off a news­stand last month,” she says, toss­ing it onto the dis­ordered stack of pho­to­cop­ies on her desk. On the cov­er, a sto­ic young wo­man stares out from un­der the head­line: “A Vic­tim’s An­guish: Raped on Cam­pus.”

As a young psy­cho­logy pro­fess­or at Kent State Uni­versity, Koss made a ground­break­ing dis­cov­ery. In a 1985 sur­vey of thou­sands of stu­dents, she found that as many as one-in-four col­lege wo­men had ex­per­i­enced some form of sexu­al as­sault, though many did not de­scribe it as “rape.” Koss’s re­search showed that al­though wo­men were fre­quently as­saul­ted by men they knew, they were en­cour­aged to see these ex­per­i­ences as nor­mal — or even to blame them­selves for wear­ing the wrong clothes or be­ing too flir­ta­tious. The find­ings pro­voked shock and dis­be­lief. Koss fended off al­leg­a­tions that she de­lib­er­ately forged and mis­in­ter­preted her data, ex­pand­ing the defin­i­tion of rape to ar­ti­fi­cially in­flate the prob­lem of sexu­al as­sault as part of a broad­er fem­in­ist cru­sade. But though sub­sequent sur­veys have come up with vari­ations on Koss’s ori­gin­al stat­ist­ic — the con­sensus is now that it’s one-in-five wo­men, not one-in-four — her meth­od­o­logy would be­come the stand­ard for study­ing the scope of the prob­lem on cam­puses, and her find­ings were a cent­ral ral­ly­ing point for fem­in­ists in a na­tion­al de­bate about vi­ol­ence against wo­men in the late ‘80s and early ‘90s.

Koss’s re­search is again fiercely, pain­fully rel­ev­ant. After ly­ing dormant for more than 15 years, the is­sue of sexu­al as­sault on col­lege cam­puses re­sur­faced in 2011, when stu­dent act­iv­ists began to protest their uni­versit­ies’ mis­hand­ling of rape cases. Ver­sions of Koss’s stat­ist­ic are again ap­pear­ing every­where: scrawled on the backs of cam­pus bath­room stalls; cited by Pres­id­ent Obama in a pub­lic-ser­vice an­nounce­ment dur­ing the Grammy Awards. In Feb­ru­ary, a bi­par­tis­an group of sen­at­ors led by Demo­crats Kirsten Gil­librand of New York and Claire Mc­Caskill of Mis­souri re­in­tro­duced a bill that would man­date sur­veys to de­term­ine the scope of sexu­al as­sault on in­di­vidu­al cam­puses — sur­veys modeled after the one Koss pi­on­eered. “The price of a col­lege edu­ca­tion,” Gil­librand said, “should not in­clude a one-in-five chance of be­ing sexu­ally as­saul­ted.”

Des­pite the great­er aware­ness of the prob­lem, the cam­pus-rape de­bate feels stub­bornly stuck in time. Last year’s magazine cov­ers from Time and Rolling Stone look re­mark­ably like the ones Koss squirreled away in her draw­er. Once again, Koss’s study — and later ones based on it — is fuel­ing back-and-forth squabbles between as­sault sur­viv­ors’ ad­voc­ates and those who be­lieve the is­sue is be­ing over­blown. And once again, a back­lash has broken out among those who worry that men’s due-pro­cess rights are be­ing trampled in the rush to identi­fy and pun­ish per­pet­rat­ors.

But while the tra­ject­ory of the de­bate is eer­ily sim­il­ar, the 68-year-old Koss is play­ing a strik­ingly dif­fer­ent role this time. Back then, she was a fem­in­ist trail­blazer; now, she’s pro­pos­ing a re­sponse to the prob­lem of sexu­al as­sault that un­settles her fem­in­ist al­lies as much as her ad­versar­ies. In­stead of fo­cus­ing solely on pun­ish­ing rap­ists more harshly and re­mov­ing them from cam­puses, as politi­cians and act­iv­ists are en­cour­aging uni­versit­ies to do, Koss is cham­pi­on­ing an al­tern­at­ive form of justice that fo­cuses on re­hab­il­it­a­tion. She says the re­search she has done since 1985 has con­vinced her that ex­pelling and pro­sec­ut­ing more col­lege sex of­fend­ers isn’t the only way — or even the best way — to help as­sault sur­viv­ors heal.

So far, Koss’s latest idea has yet to get any real main­stream trac­tion. Where once she felt over­ex­posed, she now finds her­self strug­gling to break back in­to a con­ver­sa­tion that she began. Nev­er­the­less, the no­tion that col­leges should try to edu­cate some of­fend­ers is a power­ful one — not just for col­lege ad­min­is­trat­ors sty­mied by how to re­spond to rape, but for de­cision-makers in Con­gress and the Edu­ca­tion De­part­ment as well. And as pro­voc­at­ive as it may seem, it’s a solu­tion that has cred­ib­il­ity pre­cisely be­cause Mary Koss came up with it.

BE­FORE 1985, when Koss pub­lished the ini­tial find­ings from her sur­vey, there was a gen­er­al con­sensus among schol­ars that the best way to meas­ure rape was to ask about it dir­ectly, like any oth­er il­leg­al act: Have you ever been raped? But out­side the ivory tower, fem­in­ists had be­gun to ar­gue that rape was not ana­log­ous to a crime like, say, rob­bery; it was a crime of power, used by men to keep wo­men in a state of fear. In her 1975 book, Against Our Will: Men, Wo­men, and Rape, the journ­al­ist Susan Brown­miller ar­gued that wo­men ten­ded to blame them­selves for in­stig­at­ing rape — and as a res­ult, they of­ten did not con­cep­tu­al­ize what had happened to them as a crime.

(Patric Sandri) Patric Sandri

(Patric Sandri)As a young sci­ent­ist strug­gling to make her name in the male-dom­in­ated field of clin­ic­al psy­cho­logy, Koss — who began her doc­tor­al stud­ies in 1969 — be­came a fem­in­ist al­most by de­fault. But she didn’t draw a con­nec­tion between fem­in­ism and her work, which fo­cused primar­ily on men­tal health, un­til fund­ing for a sur­vey to de­term­ine levels of sexu­al ag­gres­sion and vic­tim­iz­a­tion on col­lege cam­puses fell in­to her lap in 1978.

Koss had read Brown­miller’s book, and as she was con­struct­ing the sur­vey, she real­ized that wo­men might be re­luct­ant to la­bel their un­wanted sexu­al ex­per­i­ences as rape. So in­stead of straight­for­ward ques­tions about wheth­er wo­men had been raped, Koss de­veloped a series of be­ha­vi­or­al quer­ies about spe­cif­ic acts, such as: “Have you been forced to have sex without say­ing yes?” Her ini­tial sur­vey, which came out in 1982, was small, con­duc­ted among stu­dents at Kent State, but the res­ults sug­ges­ted something big: The num­ber of wo­men who had ex­per­i­enced rape or at­temp­ted rape was more than ten times high­er than pre­vi­ous es­tim­ates.

Koss knew she needed a big­ger sample be­fore she could draw any sub­stan­tial con­clu­sions about the pre­val­ence of rape. She was im­mersed in grant ap­plic­a­tions when she got a call from New York City. “There was this wo­man on the line who said, ‘We want you to come and have lunch with Glor­ia,’” she told me, chuck­ling as she re­membered. “It wasn’t un­til I had hung up the phone that I real­ized she was talk­ing about Glor­ia Steinem.”

Steinem had no­ticed Koss’s re­search and wanted to ap­ply for a joint grant from the Na­tion­al In­sti­tute of Men­tal Health to ex­pand the Kent State sur­vey and write about the find­ings in her magazine, Ms. It was an un­ortho­dox pro­pos­al. Koss had re­ceived fed­er­al fund­ing for her re­search be­fore, but the grant mon­it­or was skep­tic­al about bank­rolling a story in a fem­in­ist magazine. In the end, the NIMH agreed to sup­port a sur­vey of more than 6,000 stu­dents on 32 cam­puses, without fund­ing the Ms. story. In 1985, Steinem’s magazine pub­lished Koss’s pre­lim­in­ary res­ults any­way, which found that ap­prox­im­ately one-quarter of col­lege wo­men had ex­per­i­enced rape or at­temp­ted rape since the age of 14. An­oth­er num­ber from the sur­vey was eye-open­ing: Con­trary to the wide­spread as­sump­tion that most rape was com­mit­ted by vi­ol­ent strangers, 84 per­cent of the rapes in Koss’s study were com­mit­ted by someone the vic­tim knew — a phe­nomen­on Koss called “ac­quaint­ance rape.”

As we walk through the Uni­versity of Ari­zona’s sprawl­ing, sun­baked cam­pus — Koss left Kent State for Tuc­son not long after her lar­ger study was pub­lished — she de­scribes the re­sponse to her re­search with a mix of self-de­prec­a­tion and bravado. In her telling, she’s both a coun­try bump­kin who stumbled onto the na­tion­al stage and a trail­blaz­ing fem­in­ist cru­sader. She laughs about meet­ing Steinem for lunch at a fancy New York City res­taur­ant; in hon­or of her first trip to the East Coast, she’d worn what she thought was her most pro­fes­sion­al out­fit, a baby-blue silk suit — only to run in­to Glor­ia, clad in jeans and im­possibly cool. But she talks with lar­ger-than-life flair about the time when she agreed to dis­cuss her re­search on a na­tion­al talk show and ar­rived to find Hugh Hefn­er and a crowd of Play­boy bun­nies in the green­room. She sparred with Hefn­er on air for a few minutes, she re­calls, be­fore rip­ping off her mi­cro­phone and stomp­ing off set.

Des­pite great­er aware­ness of the prob­lem, the cam­pus-rape de­bate feels stub­bornly stuck in time.

The cri­ti­cism of Koss’s re­search began to grow louder when le­gis­lat­ors and col­lege ad­min­is­trat­ors star­ted mak­ing tan­gible at­tempts to crack down on cam­pus rape. In 1990, shortly after then-Sen. Joe Biden in­tro­duced the Vi­ol­ence Against Wo­men Act, Koss was in­vited to testi­fy be­fore the Sen­ate Ju­di­ciary Com­mit­tee about the res­ults of her sur­vey. The law re­cog­nized crimes against wo­men as civil rights vi­ol­a­tions and, per­haps most con­tro­ver­sially, al­lowed wo­men to sue for dam­ages in fed­er­al court. One ver­sion of the bill in­cluded $20 mil­lion to fight sexu­al as­sault at uni­versit­ies. When he was pro­mot­ing the act, Biden made prom­in­ent use of Koss’s one-in-four stat­ist­ic to bol­ster his con­ten­tion that wo­men needed stronger leg­al pro­tec­tions against gender-based vi­ol­ence. That meant that, for crit­ics, one easy way to un­der­mine the bill was to con­test Koss’s find­ings and the meth­ods she used to reach them. If Koss had ex­ag­ger­ated the ex­tent of sexu­al as­sault, it would bol­ster the ar­gu­ment that spend­ing fed­er­al dol­lars to com­bat the prob­lem — not to men­tion giv­ing spe­cial pro­tec­tions to fe­male crime vic­tims — was un­ne­ces­sary.

Neil Gil­bert, a pro­fess­or of so­cial policy at the Uni­versity of Cali­for­nia, Berke­ley, be­came Koss’s most high-pro­file skep­tic. His first blast was a scath­ing cri­tique of Koss’s re­search, pub­lished in the right-lean­ing quarterly journ­al The Pub­lic In­terest sev­er­al months after Koss test­i­fied be­fore the Sen­ate Ju­di­ciary Com­mit­tee. Gil­bert ar­gued that Koss had “trivi­al­ized” the defin­i­tion of rape by ex­pand­ing it to in­clude wo­men who did not identi­fy what they ex­per­i­enced as sexu­al as­sault. It was the policy im­plic­a­tions of her re­search that drew him in­to the fray, he says today — es­pe­cially the pro­posed spend­ing for uni­versit­ies (which did not end up as part of the law). “We were fun­nel­ing all this money to­ward col­lege cam­puses for what seemed to be an ex­ag­ger­ated prob­lem,” Gil­bert says.

Koss gets a pained ex­pres­sion on her face whenev­er Gil­bert’s name is men­tioned. In her file cab­in­et full of me­dia clips, there’s a spe­cial folder for his re­join­ders to her sur­vey, which con­tin­ued for about three years. Gil­bert took is­sue with Koss, as did oth­ers, for broad­en­ing the term “sexu­al as­sault” bey­ond the leg­al defin­i­tion of pen­et­rat­ive rape, to in­clude sexu­al con­tact like “fond­ling” or “pet­ting.” Un­der this broad­er defin­i­tion, she found that more than one-half of col­lege wo­men had ex­per­i­enced some form of sexu­al vic­tim­iz­a­tion. (About half of those wo­men had ex­per­i­enced rape or at­temp­ted rape, ac­count­ing for the fam­ous one-in-four num­ber.) She still main­tains that sexu­al mis­con­duct should be seen on a spec­trum. “I have nev­er be­lieved that it was use­ful to re­strict our re­search to rape,” she says. “Uni­versit­ies still have to deal with acts that may not be crimes, but they’re still vi­ol­a­tions. Our think­ing about sexu­al as­sault shouldn’t be one size fits all.”

The apex of the back­lash came on a Sunday morn­ing in the sum­mer of 1993, when Koss, still in her pa­ja­mas, un­fol­ded her news­pa­per at the break­fast table and saw the head­line “Rape Hype Be­trays Fem­in­ism” em­blazoned on the cov­er of The New York Times Magazine. The art­icle, writ­ten by a 25-year-old Prin­ceton gradu­ate stu­dent named Katie Roi­phe, opened with a ver­sion of Gil­bert’s at­tack: “In a 1985 sur­vey “¦ 73 per­cent of the wo­men cat­egor­ized as rape vic­tims did not ini­tially define their ex­per­i­ence as rape,” Roi­phe wrote. “It was Mary Koss, the psy­cho­lo­gist con­duct­ing the study, who did.” By ex­pand­ing the defin­i­tion of rape, Roi­phe ar­gued, fem­in­ists were en­cour­aging wo­men to see them­selves as vic­tims, pro­mot­ing a tired ste­reo­type in which men de­man­ded sex and wo­men res­isted. By re­fus­ing to al­low for the pos­sib­il­ity of bad sex or sexu­al mis­com­mu­nic­a­tion, Roi­phe said wo­men were denied the op­por­tun­ity to make their own mis­takes.

Koss fired off a let­ter to the ed­it­or, con­tend­ing that art­icles like Roi­phe’s would simply en­cour­age wo­men, once again, to think of forced sexu­al en­coun­ters as their own fault. “All pub­lished stud­ies de­scribe a mag­nitude of rape that com­mands so­cial con­cern,” she wrote. “But wo­men will not feel free to re­port these in­cid­ents as long as art­icles like Roi­phe’s fuel their fear of dis­be­lief.” By the time it ap­peared, though, Koss’s reply was sub­merged be­neath the fur­or over Roi­phe’s art­icle, which was fol­lowed by The Morn­ing After, a book about the “hys­teria” over cam­pus rape that pop­ular­ized the cri­ti­cism of Koss’s re­search.

Last July, Sen. Kirsten Gillibrand and sexual-assault survivors promoted her bill to curb campus rape, citing Koss's research: "The price of a college education should not include a one-in-five chance of being sexually assaulted." (Chip Somodevilla/Getty Images) Getty Images

In this dec­ade’s cam­pus-rape de­bates, echoes of Roi­phe and Gil­bert can of­ten be heard. Last year, Slate colum­nist Emily Yoffe took her own stab at the stat­ist­ic, writ­ing, “The one-in-four as­ser­tion would mean that young Amer­ic­an col­lege wo­men are raped at a rate sim­il­ar to wo­men in Congo, where rape has been used as a weapon of war.” Roi­phe her­self is still dis­turbed by the ubi­quity of Koss’s sur­vey, which she says is far more sub­ject­ive than it seems. “When you define rape so broadly, it loses all mean­ing,” she told me. “The as­sump­tion that wo­men can’t com­mu­nic­ate what they want is in­fant­il­iz­ing.”

But one thing has changed: The de­bate over who gets to define rape, and how, is now al­most en­tirely con­fined to the pop­u­lar me­dia. Al­though a few re­search­ers con­tin­ue to push back against her meth­od­o­logy, Koss’s ap­proach is ac­know­ledged nearly uni­ver­sally as the stand­ard in sexu­al-as­sault re­search. “We’re all draw­ing on Mary’s work in some way or an­oth­er,” says sexu­al-as­sault re­search­er Chris Krebs, who con­duc­ted one of the most re­cent na­tion­al sur­veys on cam­pus rape. In 2000, Koss re­ceived the Amer­ic­an Psy­cho­lo­gic­al As­so­ci­ation’s award for dis­tin­guished con­tri­bu­tions to re­search in pub­lic policy for her work on vi­ol­ence against wo­men. In 2006, she was named a Uni­versity of Ari­zona Re­gents’ Pro­fess­or, an hon­or re­served for the top 3 per­cent of fac­ulty who have made an out­stand­ing con­tri­bu­tion in their fields. By the time her sur­vey was up­dated in 2007 to in­cor­por­ate new ques­tions about LGBT sexu­al vi­ol­ence, oth­er schol­ars and re­search­ers had used the sur­vey hun­dreds of times in their own work. And if Sens. Gil­librand and Mc­Caskill win pas­sage of their le­gis­la­tion, nearly every uni­versity in the coun­try will soon be us­ing sur­veys like Koss’s to de­term­ine the scope of sexu­al vi­ol­ence on their cam­puses.

“It’s en­cour­aging to see people col­lect­ing more data,” Koss says. “That’s pro­gress.” But she wor­ries that the cur­rent de­bate over the pre­val­ence of sexu­al as­sault is — just as in the ‘90s — drown­ing out talk of solu­tions for sur­viv­ors. “As soon as people un­der­stand the polit­ic­al stakes, the ter­rain changes com­pletely,” she says. “So we have to think care­fully about what we really want to ask for, be­cause we might walk away with noth­ing at all.”

THE YEARS OF con­tro­versy sur­round­ing her 1985 sur­vey — the years of re­peatedly hear­ing her work dis­missed as “ad­vocacy re­search” — were pain­ful for Koss. Friends mar­vel at how little she let it show pub­licly, but des­pite the cool ex­ter­i­or she main­tained, the al­leg­a­tions were deeply in­sult­ing for someone who sees her­self as a sci­ent­ist in­formed by fem­in­ism — not the oth­er way around. “When she’s cri­ti­cized, Mary takes people on as a sci­ent­ist,” says Lisa Good­man, a pro­fess­or of psy­cho­logy at Bo­ston Col­lege and a long­time friend. “But she’s also fueled by com­pas­sion for the vic­tims. You don’t of­ten get those two things to­geth­er — the head and the heart — in sci­entif­ic re­search. When you have that emo­tion­al in­vest­ment, some­times you get writ­ten off.”

By the time Roi­phe’s book came out in 1993, Koss was already re­treat­ing in­to what she calls “aca­dem­ic stealth mode,” look­ing for pro­jects that would keep her out of the spot­light. In 1995, she began track­ing a group of rape vic­tims over sev­er­al years, try­ing to tease out why some wo­men fared bet­ter or worse after be­ing as­saul­ted. As she talked with the wo­men and began to parse the data, one theme came up again and again: self-blame. Wo­men who felt re­spons­ible for their own rape had more dis­tress in the im­me­di­ate af­ter­math of an as­sault and took longer to re­cov­er.

{{third­PartyEmbed type:magazineAd source:magazine_mid}}

So how, Koss wondered, could self-blame be mit­ig­ated? An an­swer dawned on her slowly. In the Amer­ic­an court sys­tem — and in cam­pus ju­di­cial sys­tems, which op­er­ate sim­il­arly — the de­fense in a sexu­al-as­sault case usu­ally hinges on des­troy­ing the vic­tim’s cred­ib­il­ity. That means, in many cases, sur­viv­ors of as­sault have to de­fend them­selves and face more ques­tions about what they might have done to “bring it on” — tan­tamount, in Koss’s mind, to be­ing trau­mat­ized all over again. All too of­ten, it is for naught any­way, as few at­tack­ers ever see jail time; the Justice De­part­ment es­tim­ates that while 32 of every 100 rapes are re­por­ted to po­lice, only sev­en of every 100 lead to an ar­rest. Only two rap­ists in 100 will re­ceive a felony con­vic­tion.

“I think of it as a slow-mo­tion car crash,” Koss says, lean­ing for­ward across her desk and sim­u­lat­ing an ex­plo­sion with her hands. “The vic­tim’s needs are in total con­flict with the crim­in­al-justice sys­tem. A pro­cess where you’re asked ques­tions about your be­ha­vi­or around the time of the rape and what ways you res­isted and wheth­er you were drink­ing or not — of course it’s go­ing to make you ques­tion, ‘What did I do to make this hap­pen?’”

The cam­pus-rape de­bate has long been rooted in the clas­sic Amer­ic­an no­tion that the best way to pre­vent crime and win justice for vic­tims is to pun­ish of­fend­ers by re­mov­ing them from the com­munity. Just as she had in the 1980s, Koss sus­pec­ted that the con­ven­tion­al wis­dom it­self might be the prob­lem. As she began search­ing for al­tern­at­ives to the crim­in­al-justice ap­proach, she found a hand­ful of stud­ies by re­search­ers out­side the United States that eval­u­ated a mod­el called “res­tor­at­ive justice.” Ori­gin­ally de­veloped in the 1970s, res­tor­at­ive justice is, at its most ba­sic, a form of me­di­ation between a vic­tim and an of­fend­er. It was used, on a mass scale, in South Africa’s post-apartheid re­con­cili­ation and in Rwanda’s re­cov­ery pro­cess after the 1994 gen­o­cide. In prac­tice, res­tor­at­ive justice can take many forms, but the “con­fer­ence” is a key com­pon­ent: Vic­tims and of­fend­ers have a series of meet­ings in which each per­son speaks about the crime and its ef­fects. After months or some­times years, the par­ti­cipants come to a con­sensus about how the of­fend­er can re­pair the dam­age he has done.

Koss saw the po­ten­tial for sexu­al-as­sault sur­viv­ors. “It gives vic­tims a voice, and it cen­ters the pro­cess around them,” she says. “And it’s also about say­ing to the of­fend­er, ‘Look, you need to re­cog­nize why this thing you did is wrong.’” But she knew that it wouldn’t be pop­u­lar with a lot of fem­in­ists. Her al­lies were taken aback when Koss began, in 2002, to de­vel­op a pi­lot pro­gram for sex of­fend­ers through the Dis­trict At­tor­ney’s of­fice for Pima County, which in­cludes Tuc­son and its sub­urbs. “Mary is a tre­mend­ously in­cis­ive thinker and a friend, but I dis­agreed with her about this from the start,” says Lucy Ber­liner, the dir­ect­or of the Uni­versity of Wash­ing­ton’s Har­bor­view Cen­ter for Sexu­al As­sault. “I work with vic­tims all day, and this is not something they’re ask­ing for. This is a move­ment among aca­dem­ics who don’t like pun­ish­ment or the crim­in­al-justice sys­tem over­all.” But oth­ers, like Good­man, felt that if any­one could make res­tor­at­ive justice work in this form, it would be Koss. “It was like Nix­on go­ing to China,” Good­man says. “The cri­tique of res­tor­at­ive justice is that it fails to hold per­pet­rat­ors ac­count­able. Mary has an in­cred­ibly strong sense of justice, so that made it seem less risky. She was not go­ing to let those guys get away with any­thing.”

In 2003, with fund­ing from the Cen­ters for Dis­ease Con­trol, Koss launched RE­STORE, the world’s first res­tor­at­ive-justice pro­gram to in­clude sex of­fend­ers. Over the course of the next two and a half years, Pima County pro­sec­utors re­ferred 66 felony and mis­de­mean­or cases to Koss — some from loc­al cam­puses, most from the com­munity at large — that seemed ap­pro­pri­ate for res­tor­at­ive justice. Cases in­volving ex­cess­ive vi­ol­ence or force were weeded out, and the of­fend­ers were screened for em­pathy; those who seemed un­able to un­der­stand an­oth­er per­son’s feel­ings were dis­qual­i­fied. At the be­gin­ning of the pro­cess, the of­fend­er would have to ac­cept re­spons­ib­il­ity for hav­ing caused the harm. If the of­fend­er and the vic­tim both con­sen­ted to enter the pro­gram — which happened in 22 of the cases — they would be­gin to hold con­fer­ences that would cul­min­ate in a su­per­vised re­dress plan. Fam­il­ies and friends would also at­tend con­fer­ences and dis­cuss how they, too, had been af­fected by the crime.

The most tan­gible rel­ics from RE­STORE, which ran out of fund­ing in 2007, are the in­tric­ate flow charts that Koss loc­ates, after some search­ing, on a shelf above her desk. “We were me­tic­u­lous about this,” she says. “There were so many places it could have gone wrong.” An es­sen­tial ele­ment of the pro­cess was the vic­tim telling her own story on her own terms, without in­ter­rup­tion — and then help­ing to shape her at­tack­er’s re­hab­il­it­a­tion. The of­fend­er, mean­while, would un­der­go ex­tens­ive ther­apy to make sure the les­sons from the con­fer­ences were sink­ing in. Koss’s re­search as­sist­ant on the pro­ject, Chad Sniffen, ob­served the con­fer­ences and says that sur­viv­ors seemed es­pe­cially grate­ful for the op­por­tun­ity to set the re­cord straight. There was a mo­ment where the of­fend­er would have to re­peat what he had heard the vic­tim say — and if he got it wrong, the vic­tim would cor­rect him. “That’s where a lot of vic­tims said they got their voice back,” Sniffen says. “They could say how they’d been hurt and know that the per­son who hurt them was ac­tu­ally listen­ing.”

Sev­er­al of the cases in­volved Uni­versity of Ari­zona stu­dents. Koss fondly re­mem­bers one of the sur­viv­ors ask­ing if she could make a T-shirt to rep­res­ent RE­STORE at the school’s an­nu­al Clothesline Pro­ject, a pub­lic-art ex­hib­i­tion by wo­men who have ex­per­i­enced sexu­al vi­ol­ence. The young wo­man dec­or­ated her shirt with a sparkly pink heart, ad­orned in the middle with a Band-Aid. The cap­tion read: “That was then, this is now — thanks, RE­STORE!” Koss’s voice rises in de­light as she re­mem­bers it. “We were the Band-Aid over her heart!” she says.

Mostly, though, RE­STORE was a dis­ap­point­ment. Koss had hoped that pro­sec­utors would send her sev­er­al hun­dred cases to tackle, but they re­mained wary of the whole idea. By the time the fund­ing dried up, RE­STORE had fol­lowed few­er than two dozen cases to com­ple­tion. Koss tried with in­creas­ing des­per­a­tion to find money from oth­er sources to keep the pro­gram go­ing, but most of her grant ap­plic­a­tions were re­turned im­me­di­ately — a snub for a seni­or re­search­er. When she real­ized the money was run­ning out for good, she broke down and cried. “It felt much more dis­astrous than any of the oth­er at­tacks on my re­search,” she says. “It was like a per­son­al loss, be­cause what I was do­ing was a good thing, a thing that was needed, and I couldn’t get oth­er people to see that.”

Us­ing the lim­ited amount of data RE­STORE had pro­duced, Koss pub­lished sev­er­al pa­pers between 2011 and 2014 ex­press­ing cau­tious op­tim­ism about the pro­gram’s po­ten­tial — es­pe­cially for col­leges. Be­cause they have to deal with a wide range of sexu­al mis­con­duct, in­clud­ing acts that don’t neatly map onto the crim­in­al code, Koss be­lieved uni­versit­ies could be ideal ven­ues for res­tor­at­ive justice to flour­ish. The prac­tice seemed es­pe­cially prom­ising for the very cases that are hard­est to ad­ju­dic­ate — the ones in which al­co­hol in­ter­feres with stu­dents’ memor­ies and there are few wit­nesses. When a rape can’t be leg­ally proved, she ar­gued, res­tor­at­ive justice can at least es­tab­lish that a vi­ol­a­tion did oc­cur, and then help both stu­dents move bey­ond it.

But as she tried to get the word out about res­tor­at­ive justice’s po­ten­tial, Koss found her­self at an un­fa­mil­i­ar im­passe. Her ori­gin­al sexu­al-as­sault stud­ies had nev­er suffered for at­ten­tion, but now she was strug­gling to con­vince any­one that her new work was worthy of their time or sup­port — or even of their cri­ti­cism.

ON ONE LEVEL, the tim­ing of Koss’s res­tor­at­ive-justice pro­ject couldn’t have been more for­tu­it­ous: Once again, just as in the 1990s, the whole coun­try was talk­ing about cam­pus rape. But this time around, Koss was swim­ming against the pre­vail­ing tide of fem­in­ist act­iv­ism: While she was call­ing for re­hab­il­it­at­ing of­fend­ers and em­power­ing wo­men out­side the tra­di­tion­al ju­di­cial sys­tem, act­iv­ists were fo­cused on find­ing how best to track down the per­pet­rat­ors and pun­ish them.

The re­search­er du jour was now Dav­id Li­sak, a psy­cho­lo­gist and re­tired pro­fess­or at the Uni­versity of Mas­sachu­setts, Bo­ston. In 2002, Li­sak pub­lished a sur­vey of col­lege men that found that of the 6 per­cent who ad­mit­ted to some form of rape, nearly two-thirds had com­mit­ted an av­er­age of six rapes each. These men, Li­sak ar­gued in a 2011 pa­per, were seri­al pred­at­ors who were re­spons­ible for the vast ma­jor­ity of sexu­al as­saults on col­lege cam­puses.

Li­sak’s study has meth­od­o­lo­gic­al lim­it­a­tions — it was con­duc­ted at a com­muter uni­versity, for one thing, so the mean age for his sample is older than that of most col­lege stu­dents — but it has be­come ubi­quit­ous both among ad­voc­ates for rape sur­viv­ors and those who cri­ti­cize re­cent ef­forts to make col­leges take sexu­al as­sault more ser­i­ously. It’s easy to un­der­stand why. If Li­sak’s find­ings are true, uni­versit­ies could ad­dress their sexu­al-as­sault prob­lem by ex­pelling just a hand­ful of men. In re­sponse to this pre­vail­ing idea, sev­er­al uni­versit­ies — in­clud­ing Duke and Dart­mouth — have im­ple­men­ted policies where ex­pul­sion is the “pre­ferred” sanc­tion for sexu­al as­sault, mean­ing that it will be the first pun­ish­ment to be con­sidered.

But as ter­ri­fy­ing as the no­tion of seri­al rap­ists prowl­ing col­lege cam­puses might sound, Koss wor­ries that basing policies on Li­sak’s the­ory would ac­tu­ally let too many men off the hook. She has coau­thored a new study, to be re­leased in Ju­ly, which shows that men who com­mit cam­pus rape are a much lar­ger — and more di­verse — group of men than Li­sak re­por­ted. “All rap­ists are not cre­ated equal,” she says. “A broad defin­i­tion of sexu­al as­sault means that you’re deal­ing with a lot of dif­fer­ent kinds of people.”

Li­sak says that re­cog­niz­ing the prob­lem of re­peat of­fend­ers is im­port­ant — but he agrees that his re­search shouldn’t lead to simplist­ic solu­tions. “Whatever the pre­cise per­cent­age of sexu­al as­saults be­ing com­mit­ted by seri­al of­fend­ers, the fun­da­ment­al math of this phe­nomen­on dic­tates that seri­al of­fend­ers rep­res­ent a very sig­ni­fic­ant part of the prob­lem,” he told me by email. “No, all sexu­al as­saults are not com­mit­ted by seri­al of­fend­ers. But many are. So a uni­versity must have an ar­ray of re­sponses that can ad­dress both seri­al and non­seri­al cases. And uni­versit­ies must also be re­spons­ive to the needs and wishes of sur­viv­ors. Many sur­viv­ors want com­plete pri­vacy. Some sur­viv­ors want help only for their wounds. Some sur­viv­ors want a full ad­ju­dic­a­tion of their com­plaints.”

If uni­versit­ies see their primary re­spons­ib­il­ity as find­ing a small num­ber of dan­ger­ous men and re­mov­ing them, Koss be­lieves they won’t be ad­dress­ing the real en­a­bler of sexu­al as­sault: a per­vas­ive cul­ture of sex­ism. She also be­lieves that al­though some cases shouldn’t be con­sidered for a res­tor­at­ive-justice ap­proach, many of the men who com­mit sexu­al as­sault have the ca­pa­city to change. To Koss, it is a uni­versity’s job, as an edu­ca­tion­al in­sti­tu­tion, to help them try. “The dif­fer­ence between an every­day miso­gyn­ist and Li­sak’s pred­at­or,” she says, “is that the first guy can learn that what he did is wrong. Are we really say­ing there’s a whole cat­egory of men we can’t edu­cate?”

To some fem­in­ists and sur­viv­or ad­voc­ates, there’s a clear an­swer to Koss’s ques­tion: yes. “Every year, Stan­ford turns down thou­sands of people who have per­fect re­cords,” says Michele Dauber, a law pro­fess­or at Stan­ford Uni­versity. “Why would we want someone who com­mits rape?”

Des­pite that pop­u­lar sen­ti­ment, some uni­versity ad­min­is­trat­ors have ex­pressed an in­terest in us­ing res­tor­at­ive justice, es­pe­cially in in­stances where wo­men are re­luct­ant to pur­sue charges — or where the evid­ence is likely too murky for ex­pul­sions or con­vic­tions to res­ult. “There are so many cases that a pro­sec­utor wouldn’t touch,” Koss says, “where it’s just one per­son’s word against an­oth­er’s. That doesn’t mean there wasn’t a vi­ol­a­tion, but the crim­in­al-justice sys­tem can’t of­fer mean­ing­ful res­ol­u­tion. Is that per­son just out of luck?” A task force at Penn State Uni­versity re­cently re­com­men­ded that ad­min­is­trat­ors look at re­cent cases to de­term­ine wheth­er a res­tor­at­ive-justice pro­cess might have worked bet­ter. Some cam­pus edu­cat­ors are also dis­cuss­ing the form­a­tion of a net­work of sup­port groups for men re­turn­ing to school after be­ing sus­pen­ded for sexu­al-as­sault vi­ol­a­tions, draw­ing on res­tor­at­ive-justice strategies.

Schools that turn to res­tor­at­ive justice will face prag­mat­ic hurdles and, po­ten­tially, leg­al ones as well. The Edu­ca­tion De­part­ment sets guidelines for how uni­versit­ies handle sexu­al-as­sault ac­cus­a­tions, and act­iv­ists in re­cent years have suc­cess­fully pressed for stand­ards de­signed to make it tough­er to get away with rape on cam­pus. In 2011, new guidelines re­quired uni­versit­ies to lower the stand­ard of proof needed to hold per­pet­rat­ors re­spons­ible, for in­stance. But many of the fed­er­al guidelines are murky — in­clud­ing a pro­vi­sion that for­bids uni­versit­ies from us­ing me­di­ation to re­solve sexu­al-as­sault cases. Would that rule out res­tor­at­ive justice? The ban was a re­sponse to some uni­versit­ies’ tend­ency to slide sexu­al-as­sault cases un­der the rug by say­ing they had been me­di­ated — when in fact there was no real ac­count­ab­il­ity for the of­fend­er — but it places an in­ad­vert­ent bar­ri­er in the way of res­tor­at­ive justice, which Koss ar­gues is far more rig­or­ous.

{{third­PartyEmbed type:magazineAd source:magazine_bot­tom}}

Dav­id Karp, a dean at Skid­more Col­lege who has been a na­tion­al lead­er in bring­ing oth­er forms of res­tor­at­ive justice (like ra­cial-re­con­cili­ation pro­grams) to cam­puses, says that cam­pus ad­min­is­trat­ors are clearly in­ter­ested in the ap­proach — the work­shops he fa­cil­it­ates on the top­ic routinely sell out. But they are wary of in­vest­ing in a sexu­al-as­sault pro­gram that the gov­ern­ment might shut down. There are prag­mat­ic hurdles, too, Karp says: A pro­gram like Koss’s would re­quire in­tens­ive train­ing for uni­versity staffers. (Koss in­sists that though every in­sti­tu­tion would have to cus­tom­ize its pro­cess, there is a way to stream­line and rep­lic­ate the prac­tice.)

Uni­versit­ies that em­brace Koss’s vis­ion wouldn’t just be run­ning up against fed­er­al rules or prac­tic­al prob­lems, though: They’d surely also face cri­ti­cism from sexu­al-as­sault act­iv­ists. Al­ex­an­dra Brod­sky, a Yale Law stu­dent who cofoun­ded a na­tion­al group that edu­cates cam­pus-rape sur­viv­ors about their rights, says she ini­tially saw prom­ise in res­tor­at­ive justice. But Brod­sky’s act­iv­ist work has left her deeply skep­tic­al of uni­versit­ies’ will­ing­ness to pur­sue justice for sexu­al-as­sault sur­viv­ors, and she thinks res­tor­at­ive justice would give them an­oth­er way to cop out. “It’s a con­veni­ent op­tion for schools that don’t want to take ag­gress­ive ac­tion against per­pet­rat­ors,” Brod­sky says. “And it denies sexu­al-as­sault sur­viv­ors their chance to be angry, to de­mand the same kind of justice that we give to vic­tims of every oth­er crime.”

Koss says she ad­mires the work that stu­dents like Brod­sky have done to bring pub­lic at­ten­tion back to sexu­al as­sault on cam­puses. But she dis­agrees that res­tor­at­ive justice would re­place “ag­gress­ive ac­tion” against per­pet­rat­ors — in­stead, she says, it would give sur­viv­ors a choice about what ac­tion to take. Be­ing able to make that choice, she be­lieves, is it­self em­power­ing. “People say, we can’t use res­tor­at­ive justice be­cause rape vic­tims are fra­gile and might get ab­used,” she says. “Well, in my ex­per­i­ence, that’s just not true. I feel we’re ob­lig­ated to give them op­tions and trust them to make the right choice. Not all wo­men will want an ad­versari­al sys­tem, and we owe them a way to heal, too.”

But there isn’t much room for Koss’s ar­gu­ments in the cur­rent de­bate. And it’s hard to get polit­ic­al pur­chase for a bold new idea when even your al­lies think you’re mis­guided. “I’m al­ways will­ing to be proven wrong,” Koss says. “What truly frus­trates me is the fear of try­ing something new.”

One day in Tuc­son, as Koss and I were driv­ing to lunch, nos­ing our way along a broad boulevard at the edge of the Uni­versity of Ari­zona’s cam­pus, I asked how she re­sponds to her crit­ics. She answered by telling one of her fa­vor­ite stor­ies from the RE­STORE pro­ject, about a young un­der­gradu­ate male who had as­saul­ted a fel­low stu­dent. “It’s the type of thing that I’m sure the act­iv­ists would scream about if they heard it,” she said, point­ing for me to turn. “Be­cause it was what the sur­viv­or-vic­tim wanted, we gave that young man what was ba­sic­ally a school pro­ject. He had to spend one year re­search­ing a present­a­tion on date rape for his fra­tern­ity. But we su­per­vised him, so he took it ser­i­ously, and after the pro­cess was over, he ended up par­ti­cip­at­ing in the cam­pus rape-edu­ca­tion group. Maybe that would sound hokey or naïve to some people, but I really saw it as a suc­cess.”

Amelia Thom­son-De­Veaux is a writer based in Chica­go.


Welcome to National Journal!

You are currently accessing National Journal from IP access. Please login to access this feature. If you have any questions, please contact your Dedicated Advisor.