The other side of justice

By C.K. Egbert, philosophy columnist

On Wednesday, students in universities across the United States went to school clutching pillows and mattresses, expressing support for victims of sexual violence and the lack of institutional sensitivity. The cause has seen a widespread and diverse range of student supporters, even as school administrators vociferously proclaim their support for survivors. For instance, in the Take Back the Night March at Northwestern last spring, members from several fraternities on campus held banners, even though fraternity members are almost three times more likely to commit rape than men who are not in fraternities, according to a 2007 study published in NASPA Journal.

When it comes to sexual violence, there is a serious rift between expressed commitments and reality, at both an institutional and individual level. It is easy to talk about support for victims, but not so easy to talk about justice.  Justice requires that we change institutions, attitudes, and, most importantly, it means that we hold perpetrators accountable for their actions.

When people talk about justice and its corollary, due process, in cases of sexual violence, it is often from the perspective of the alleged perpetrator. It wasn’t really rape, they may say. We cannot know what really happened, and of course there is the oft-repeated trope that it is better to let ten guilty men go free than it is to condemn one innocent man. Yet there is another important side of justice, and that is the perspective of the victim. This becomes a particularly important concern when dealing with interpersonal violence and abuse, especially as victims (or other people) are at risk of further harm at the hands of the perpetrator.  We know what due process looks like for the alleged perpetrator: it means that, if innocent, the accused goes free.  It means that there is a consistent–and to the extent possible, unbiased–process which either convicts or acquits him.

What does due process mean for the victim though? For the victim, it means that the law is so designed as to accurately capture the reality of abuse and violence (which our current laws often fail to do).  It means that the victim is treated with dignity and respect in making a complaint, and can do so without fear of retribution.  It means that the victim is adequately protected from further harm. It also means that the process is reliable in convicting and punishing perpetrators them in proportion to their crimes.

Philosophers often make a distinction between substantive justice and procedural justice.  Substantive justice concerns the outcomes or, somewhat simplistically, the right answer. If the candidate who would be the best leader were chosen, then the result of the election is substantively just (it resulted in the “right answer”).   Procedural justice concerns whether the processes by which we get the answers are fair. If the process to elect candidates is fair—say, by letting everyone vote and selecting the candidates on the basis of a majority—then the process is procedurally just.  The two can come apart if, for instance, the candidate elected turns out to be a bad leader despite being elected through fair procedures.

Of course these two types of justice aren’t as clearly delineated as they might seem. Part of how we measure the procedural justice of a process is whether it serves the purpose it is supposed to serve and reliably results in the correct answer.  If we had a justice system in which no innocent people were convicted but neither was any guilty person put behind bars, it would be difficult to claim that the justice system served the purposes of procedural justice whilst so obviously failing in its goal of protecting peoples’ rights.

To take this point further, imagine  a world in which assault is only defined as being shot with a gun (but with no other weapon and in no other instance). The evidentiary standards are such that even these assaults will generally go unprosecuted unless it happens in broad daylight, with witnesses. In those cases, the perpetrator often only serves a few months in prison before being let free—and is free to possess a firearm.

Would you feel safe in this world? Probably not.  Unfortunately, that is very similar to the world in which we currently live, at least with regard to various forms of abuse and sexual violence: the rates of abuse are high, and the rates of conviction are extremely low. Our system is failing on substantive justice in a big way, and in doing so it fails in procedural justice. It fails to provide justice for the victims who never report for fear of retaliation, it fails to provide justice for those who do report and are treated like criminals, and it fails to provide justice for those who see their perpetrators go free.

It is not easy to talk about or accept the types of changes that would be necessary to make things better; it is even harder to make them happen. However, if we are to genuinely declare our support for survivors, change is exactly what we need.

*The author is a member of Northwestern’s Women into Philosophy group, which writes a recurring column for The Chronicle. Her views, however, are strictly her own and not representative of the group as a whole.

Leave a Reply

Your email address will not be published.