RESTORATION, RETRIBUTION, AND SEXUAL ASSAULT: THE VALUE OF APOLOGIES.

• Author: Marino, Kristen M.

INTRODUCTION 871 I. SEXUAL ASSAULT & RESTORATIVE JUSTICE 874 II. THE VALUE OF APOLOGIES FOR SEXUAL ASSAULT 877 A. Instrumental Value of Apologies 877 1. Psychological Benefits to Victims 878 2. Psychological Benefits to Offenders 881 3. Impact on Litigation 882 a. Criminal Cases 882 b. Civil Cases 885 B. Apologies & Retributivism 886 1. Retributive Value 886 2. Addressing Objections 890 C. The Danger of False Apologies 893 III. LEGAL STATUS OF APOLOGIES 894 A. Current Status 895 1. Federal 895 2. State 895 B. Proposed Solutions 897 IV. PROPOSED RULE 900 A. Evidentiary Relevance of Apologies 900 B. Text of the Rule 902 C. Explanation of the Rule 903 1. Criminal and Civil Cases 903 2. Same Alleged Assault 903 3. Made Directly by Defendant to Victim 905 4. Non-Public 905 5. Any Party 909 6. Allowance for Impeachment and Rebuttal 910 7. Rule of Completeness 911 8. Exclusion of Apologies that Evince Fault 911 CONCLUSION 912 INTRODUCTION

The #MeToo and #TimesUp movements have ignited long-overdue conversations about the alarming prevalence and significant harm of sexual violence. (1) They have encouraged victims to share their stories and hold offenders accountable. They have resulted in the prosecutions and convictions of multiple high-profile, serial perpetrators, including Harvey Weinstein and Larry Nassar. (2) And research has shown that they may have even increased the number of arrests for sex crimes, both in the United States and internationally. (3)

Increasing focus on sexual violence is imperative. "Every 68 seconds[,] another American is sexually assaulted," and one of every six women in the United States "has been the victim of an attempted or completed rape." (4) With this increased public attention on sexual violence, eyes are turned to the criminal justice system's role in holding perpetrators accountable and seeking justice for victims and communities. (5) Despite reform efforts, considerable problems remain in the system's ability to facilitate restoration, retribution, and deterrence for sexual violence. (6)

To address these inadequacies, some theorists have proposed shifting from the criminal prosecution of sexual assault to the use of restorative justice programs. (7) While these proposals have some merit, substituting these restorative programs for prosecutions may hinder deterrence, undermine just outcomes, and result in additional harm to victims.

As an alternative solution, this Comment suggests that criminal law may learn from restorative justice by incorporating its focus on apologies and acceptance of responsibility. It argues that in order to encourage apologies, a limited evidentiary exclusion should be created. These apologies are highly valuable because they help all parties heal from sexual violence, may improve litigation outcomes, and further the goals of criminal punishment. (8)

An apology exclusion is necessary in part because defendants are often discouraged from apologizing due to liability concerns, (9) as neither federal nor state rules exclude apologies for sexual assault from evidence. (10) These legal concerns may "make it even harder to admit wrongdoing for [sexual offenders] who may already be hesitant to own up to their behavior," and they may deter "those who do want to apologize." (11) Considering the long sentences (12) and collateral consequences of sexual assault convictions, it is unsurprising that defendants are reluctant to admit their wrongdoing through apologies. (13) However, this Comment argues that promoting apologies is good for defendants, victims, and justice overall, and thus, the evidentiary value of an apology is outweighed by the good that its exclusion can create.

This Comment proceeds in four parts. Part I explores the intersection of sexual assault and restorative justice programs. Despite the potential merits of restorative justice programs, Part I argues that it may be unwise to implement them fully at this time. But the criminal justice system may learn from restorative justice, specifically by encouraging apologies.

Part II discusses the significant value of apologies for sexual assault and argues that this value justifies an evidentiary exclusion. It describes the psychological benefits of apologies, their potentially positive effects on litigation, and how apologies facilitate retributivism. Finally, it addresses the concern that adopting an exclusion would encourage false apologies.

Part III describes the current legal status of apologies. It begins by outlining the dearth of evidentiary protections in both the federal and state systems. It then analyzes and ultimately rejects as insufficient other proposals to exclude apologies.

Finally, Part IV begins by addressing the probative value of apologies for sexual assault. It then illustrates, by referencing privilege doctrine and two similar exclusionary rules, that we may exclude relevant evidence for sufficiently strong normative and policy reasons. Subsequently, Part IV outlines and defends an apology exclusion that is justified by the high value of apologies. It suggests various parameters for the exclusion, including the type of apology, how it is conveyed, the way it may be used, and how publicity should be treated so as to make the exclusion only as broad as is necessary to accomplish its goals.

As the breadth of the #MeToo movement illustrates, victims have gone without sufficient consideration or restoration for too long. They have been forced to navigate a complex criminal justice system that fails to represent their interests sufficiently, and they have faced both public and private skepticism when they have chosen to come forward. It is the goal of my proposed exclusion to help remedy this injustice. Implementing a narrowly tailored apology exclusion will improve the criminal justice system's treatment of sexual assault cases. It will encourage defendants to apologize, facilitate both restoration and retribution for sexual violence, and increase public and private accountability without overly sacrificing the truth-seeking process.

1. SEXUAL ASSAULT & RESTORATIVE JUSTICE

   Despite the prevalence and severity of sexual violence, the criminal justice system serves victims of sex crimes insufficiently. (14) As such, some scholars have suggested the use of restorative justice to address sexual misconduct. (15) Rather than focusing on punishment, restorative programs focus on "the restoration and reintegration of victims" and offenders, as well as the harm to the broader community. (16) They are generally considered "alternative[s] to criminal justice." (17) Although restorative justice aims are positive, I argue in this Part that the widespread implementation of such programs in sexual assault cases is unlikely, premature, and potentially harmful. However, criminal law can learn from and incorporate a key insight of restorative justice: the value of apologies. (18)

   Restorative justice programs are one aspect of diversion, which is a process that allows defendants to receive "dismissal, a reduction of the charges, and, if relevant, a significantly lower sentence, typically involving no jail time" if they meet certain requirements. (19) Some restorative programs, such as those "for serious crimes," require "victim consent and participation," as the programs are "victim-centered." (20) They may involve "[p]eacemaking circles, victim-offender mediation, community and family group conferencing[,] and peer mediation." (21) Participants may include victims, offenders, families, friends, and members of the community. (22)

   Apologies are "[a]n important feature of restorative justice," as they serve the restorative goals of facilitating healing and relationship repair. (23) They illustrate that offenders acknowledge and accept the societal values that they previously infringed through their wrongful conduct. (24) They are also a key aspect of restorative justice's efforts to "engag[e] the affected parties in a dialogue . . . toward the reestablishment of a consensus between the parties." (25) One restorative program focused on sexual assault culminated in offenders writing apology letters wherein they accepted responsibility for their wrongful conduct. (26)

   Although restorative programs may benefit victims, offenders, and communities, there are few focused on sexual assault. (27) And while their prevalence could increase, it seems unlikely that they will grow to replace all criminal prosecutions of sexual assault. For that to occur, every jurisdiction would have to adopt and fund these programs, every prosecutor would have to offer them in every case, and every defendant would have to participate in them.

   However, even if it was possible to substitute restorative programs for all prosecutions of sexual assault, it may be unwise to do so at this point. The use of restorative justice for sexual violence is controversial and underexplored, (28) so introducing widespread reform is premature. Restorative programs "may undervalue the harm of [sexual violence], place undue demands on survivors, reprivatize gendered violence in ways that perpetuate harm, or revictimize victims through the expression of power imbalances." (29)

   Restorative justice practices also conflict with criminal punishment goals for sexual violence. Redirecting prosecutions would undermine deterrence: If all offenders may participate in restorative programs that carry no sanctions, then there would be few consequences to dissuade would-be offenders from committing sexual assault. (30) Moreover, while apologies facilitate retributivism, they may not, standing alone, constitute morally sufficient punishment for at least the most culpable offenders. (31)

   Incorporating restorative justice's focus on apologies by implementing an evidentiary exclusion will improve the criminal justice system's response to sexual assault and raise fewer concerns than using alternative programs. (32) It will facilitate restorative justice's...