#MeToo, Time’s Up, and Restorative Justice

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Posted in: Civil Rights

The #MeToo movement, along with international counterparts like France’s Out Your Pig, has empowered women to speak out about sexual harassment and discrimination. Increasingly, women (and men) in Hollywood and other industries have identified not only their abuse, but also their abusers and the structures that have facilitated and protected their abusers. As with other recent movements, such as Black Lives Matter and Occupy Wall Street, that identified significant societal ills, supporters are now being pressed to go beyond identifying the problem to provide specific solutions and a pathway to achieving them.

At the same time, cultural commentary suggests a growing concern that the movement is going too far, ruining the careers and humiliating men who may have committed no crime nor statutory violation. We see this worry in the cautious response to Believe All Women, the angst embodied in Daphne Merkin’s Publicly, We Say #MeToo. Privately, We Have Misgivings piece, the letter signed by a collective of hundred French women defending the freedom to pester, the condemnation of the woman who accused Aziz Ansari of sexually harmful behavior, and Margaret Atwood’s invocation of the bad feminist to defend due process for accused harassers. So where does this leave the movement and its pursuit of accountability?

The impetus from #MeToo and in particular, the Alianza Nacional de Campesinas letter of solidarity representing 700,000 farmworkers, helped spawn the Time’s Up initiative which offers one set of possible answers. Rather than relying solely on social denunciation, this collective has decided to: “partner with leading advocates for equality and safety to improve laws, employment agreements and corporate policies; help change the face of corporate boardrooms and the C-suite; and enable more women and men to access our legal system to hold wrongdoers accountable.” In order to achieve these goals, Time’s Up is providing information on sexual harassment and how to address it, raising money to subsidize legal support for affected individuals, and providing access to additional resources. At first blush, Time’s Up relies on traditional legal tools, both legislative and judicial, to assist victims as well as initiatives to shift workplace culture by increasing the number of women in powerful positions.

Interestingly, though, they may have something more radical in mind. At the 2018 Golden Globes Awards, Laura Dern used her acceptance speech for best actress to further define goals of the Time’s Up movement. It included this emphatic plea: “Many of us were taught not to tattle. It was a culture of silencing and that was normalized. I urge all of us to not only support survivors and bystanders who are brave enough to tell their truth, but to promote restorative justice. May we also please protect and employ them. May we teach our children that speaking out without fear of retribution is our culture’s new North Star.” What’s curious about this plea is that it leaves ambiguous what restorative justice might mean in this setting.

Given the rest of her speech, one possible reading speaks directly and exclusively to the restoration and reintegration of women who have suffered employment setbacks at the hands of their harassers and assaulters. Take, for example, Rose McGowan who says she was blacklisted in Hollywood after making internal complaints about her rape at the hands of Harvey Weinstein or Annabella Sciorra who suspects Weinstein had maligned her as a difficult actress or Dana Min Goodman and Julia Wolov who felt a career backlash as result of complaining about Louis C.K. masturbating in front of them after their comedy performance, suggesting his manager was taking efforts to sabotage them. In addition to direct retaliation, harassment and assault can make it difficult for victims to excel in their chosen professions because of the lingering mistrust and emotional trauma. Such effects are described by actresses like Hilarie Burton who “has refused to audition and refused to work for showrunners she does not already know.” She explained,“The fear of being forced into another one of these situations was crippling,” she said. “I never wanted to be the lead female on any show ever, ever, ever again.”. Under this interpretation, justice is purely victim focused and concerned with repairing and restoring those that have been harmed.

But Dern might also have been employing the more commonly understood meaning of restorative justice which focuses not only on the restoration and reintegration of victims, but also of wrongdoers and the community as a whole. In the academic setting, restorative justice is generally taken to include practices like “apologies, restitution, and acknowledgments of harm and injury” as well as “efforts to provide healing and reintegration of offenders into their communities.” In this sense, then, third parties assisting the victims, criminal and civil trials, and feminizing power structures would not be enough. Rather restorative justice would also call for “direct communication . . . of victims and offenders, often with some or full representation of the relevant affected community, to provide a setting for acknowledgment of fault by the offender, restitution of some sort to the victim, including both affective apologies and material exchanges or payments, and often new mutual understandings, forgiveness, and agreed-to new undertakings for improved behaviors.” Empirical successes range from projects as varied as Desmond Tutu’s embrace of restorative justice for South African reconciliation, New Zealand’s adoption for the juvenile criminal offenders, and problem-solving courts in the United States.

How might principles from restorative justice be applied in the current moment? One possible example might be the recent interaction of Megan Ganz, a television show writer, and her former boss Dan Harmon. After Megan Ganz called Dan Harmon out on Twitter, a virtual community of millions, for his harassment and abuse of her, Harmon recently offered a lengthy apology on his podcast which included a very specific acknowledgment of the variety of ways in which he had created a toxic work environment including gaslighting and retaliation. He also detailed efforts he was undertaking to prevent himself from behaving the same way in the future. In addition, Harmon also called on the community to stop attacking Ms. Ganz. In return, Ganz linked to the podcast, massively increasing the audience for the podcastbecause of its subsequent media amplification, and accepted his apology.

But such possibilities of restorative justice raise tricky questions that pervade the field more generally. While advocates generally view restorative justice as appropriate for low-level interpersonal or even criminal offenses, its use in more grave settings is much more contentious. Should there be efforts to reintegrate serial rapists like Harvey Weinstein? Relatedly, how should such a system interact with the criminal and tort systems? Is it a supplement or a substitute? Should such a process be purely voluntary and initiated only at the victim’s discretion? In order to be fully restorative, need the interaction include material exchange or payments as it does in many other settings? It is worth noting that women are not only the predominant victims, but are also largely bearing the financial, emotional, and organizational labor of building a more equal society. (Contrast, for example, Michelle Williams’ eagerness to accept an $80 per diem to reshoot All the Money in the World, noting “They could have my salary, they could have my holiday, whatever they wanted . . . . Because I appreciated so much that they were making this massive effort” with her co-star Mark Wahlberg’s insistence on 1.5 million dollars in order to continue.)

While these are hard questions, regardless of how they are answered, the invocation of restorative justice suggests the #MeToo and Time’s Up movements are adding new concepts and tools to their existing arsenal of legal and social tools.