Sexual Justice: Supporting Victims, Ensuring Due Process, and Resisting the Conservative Backlash
By Alexandra Brodsky
2021, Metropolitan Books
Campus stakeholders expect an assurance that their college will provide a safe and equitable environment. This includes taking sexual misconduct seriously. Unfortunately, such affirmations are not always perceived to match the outcome when instances occur. In Sexual Justice: Supporting Victims, Ensuring Due Process, and Resisting the Conservative Backlash (2021) Alexandra Brodsky highlights the reporting mechanisms among many higher education institutions and the controversies that have arisen from their implementation. She provides a number of personal accounts not only from victims but also the accused and how neither felt they were treated fairly, equitably, or with dignity. While much of the focus is understandably directed at the experiences and needs of sexual abuse victims, Ms. Brodsky accentuates the degree to which both parties have asked for clear explanations of their rights and how institutional processes (which can differ among campuses) are administered.
Ms. Brodsky is a Yale Law School graduate, a civil rights attorney, and co-founder of Know Your IX, a student-led organization that combats gender violence in schools. Her personal and professional background in anti-sexual violence advocacy has clearly influenced her ardent views regarding campus resolution policies. Sexual Justice unpacks many concerns that sexual violence victims may encounter: continued contact with their abuser, fear of retaliation or institutional disciplinary charges (the latter which may result when the purported misconduct occurred alongside other violations of campus rules), not being believed, prolonged disciplinary procedures, etc. These concerns apply not only to campus environments but also within the private sector, as the book exemplifies by using litigation against a Las Vegas casino and financial company as models of unfavorable conduct. However, while also presented with the federal court’s limitations in effectually ending sexual abuses, the reader is shown that more effectual methods are necessary in preempting sexual misconduct within our educational and workforce settings.
A central tenet of Sexual Justice is the notion of “exceptionalism,” which Brodsky describes as “an assumption that sexual harassment allegations should be subject to different, and usually more demanding, procedures than all other forms of misconduct.” She compares the treatment of sexual accusations to other infractions such as bullying, vandalizing a dormmate’s property, or race-based discrimination. Within this analysis, she clearly explains how exceptionalism creates heightened procedural standards for sexual allegations, which may result in stigmatization and/or re-traumatization of the victim. Here, Brodsky questions the demand for entirely separate standards of proof that result in “single-issue processes.” This portion of the narrative alone may influence readers to consider whether their own institution should reevaluate existing disciplinary frameworks.
While the book reiterates many details that are likely familiar to those who broadly follow this subject matter (e.g., very few sexual assault reports lead to an arrest; the vast majority know their abuser), the content specific to student life and the college experience may expose readers to new insight. For example, Brodsky recounts a 2016 study’s finding that “over a third of college sexual assault survivors drop out.” She also demonstrates how the justice system is not always a reliable source of impartiality, such as the perception among many law enforcement officers that false rape reports are more common than those reported by best estimates (this assessment was based on a 2014 study involving a sample of Florida officers). The underlying point presented here is that some officers, while responding to sexual assault claims, may display prejudice against complainants who do not represent the “perfect victim.” These inclinations may result from a variety of circumstances, such as an accuser’s intoxicated state and/or revealing clothing worn at the time of the incident. That being said, college students (regardless of gender or sexuality) may become less likely to report such events to any authority figure if underlying concerns exist about their perceived credibility or the likelihood of corrective action. While Brodsky’s primary aim is not directed at how institutions can educate students on the importance of using institutional reporting channels, the reality that many victims are hesitant to report to anyone cannot be ignored.
The application of “fairness” may appear to some readers as a straightforward, by-the-book process. Yet, how one measures justice in the aftermath of sexual harm can understandably differ according to the circumstance and individual. Sexual Justice illuminates the notion that within the four components of American legal theory (retribution, rehabilitation, deterrence, and incapacitation), the victim’s welfare is never fully addressed. More specifically, according to the Rape, Abuse, and Incest National Network (RAINN), most sexual assault reports fail to result in arrests and convictions. Thus, the framework of a criminal investigation limits the possibilities available to the victim, which can serve as an additional deterrent for reporting such instances. In response to this concern, Brodsky offers numerous examples of how institutional reactions can differ from formal judicial practices and how they can deliver “community-specific protections” that offer adaptable, “light-touch solutions.” Within the campus environment, this can include rearranging a student’s schedule and/or campus residential accommodations to avert future contact between the two parties. Furthermore, while Brodsky admits that there is no one-size-fits-all remedy for addressing sexual misconduct, she asserts that allegations should be subject to “the same procedures used for all other misconduct that implicates similar interests and similar stakes.” Thus, she advocates for a two-pronged approach that distinguishes between violations “against the school” and those in which one student has harmed another, wherein the former does not directly threaten the students’ educational abilities or their capacity to take part in campus life.
Some readers may be wary of Sexual Justice’s political tones based on the subtitle. However, for the most part, Brodsky’s indignation is directed at the misogynistic bias that is purportedly baked into the insistence for exceptionalism-based policies. In doing so, she illuminates what philosopher Kate Manne refers to as “himpathy.” More specific to this, she takes issue with men’s rights activists (which delivers an interesting – albeit silly – opposing standpoint on the matter) and others who exhibit mentalities that automatically side with the accused, as if sexually-related allegations are feministic witch hunts. Likewise, Brodsky also expounds on her concern about misinformation and how feminists have been characterized as those who “believe every single woman about everything she says.” As far as political figures are concerned, Brodsky targets former Secretary of Education Betsy DeVos for restructuring Title IX regulations and villainizes former-Georgia state representative Earl Ehrhart’s intervention in disciplinary processes across various campuses. There is also an entire chapter dedicated to the sexual assault accusations that came to the forefront during Brett Kavanaugh’s 2018 U.S. Supreme Court confirmation. However, any political or ideological leanings should not diminish the book’s central themes.
Sexual Justice delivers insight that should prove to be beneficial for campus administrators, Title XI coordinators, and student advocates. Its overarching goal is to encourage fair procedures that “help decisionmakers come to more accurate conclusions, untainted by bias or other forms of irrationality.” Brodsky’s emphasis on providing victimized students with a sense of ownership throughout the fact-finding and/or disciplinary process will carry significant weight among many readers. Such empowerment reflects Brodsky’s assertion that “participants are more likely to buy into the result of a process when they feel it’s fair – even when they do not like the outcome.” Although the previous quote surely fails to produce absolute accuracy, institutions must feel compelled to provide both the accused and the accuser with fair, consistent responses. Thus, the dichotomy that pits the rights of the two parties against each other should not inherently exist. This is one of several resounding messages conveyed by Brodsky, which is worth hearing time and again.
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