Moral Statutes of Limitation and Restorative Justice for #MeToo Claimants

Posted in: Human Rights

In the wake of Dr. Christine Blasey Ford’s accusations of sexual assault and attempted rape against Supreme Court nominee Brett Kavanaugh, some have suggested that an apology from Kavanaugh would have sufficed. But sufficed for what? The question of what a Supreme Court nominee needs to do in order to satisfy the Senate and the public that he can serve as an impartial, fair justice with sufficient moral credibility is a different question from what an assaulter owes a victim. While many have talked about whether to import a moral statute of limitations into the Senate proceedings for an alleged crime that occurred over 30 years ago, that discussion has largely focused on the institution of the Supreme Court. While such a focus helps answer the question of what should the Senate do right now, it may have also obscured a related question relevant to the larger #MeToo conversation: should there be a moral statute of limitations for wrongdoing and if not, what obligations does a person who long ago committed sexual harassment or sexual assault owe his victim now?

One place people often turn in answering these moral #MeToo questions is the law. In criminal and civil law, a statute of limitation serves multiple purposes. Some justifications for a statute of limitations are pragmatic. They concern accuracy and proof problems. Both memories and physical evidence can and often do degrade over time. Many also emphasize the importance of providing finality to those who might be accused of wrongdoing. The law reflects a notion that at least some potential defendants ought to have the slate wiped clean after a period of time and be able to rely on settled expectations. Philosophers also suggest that for purposes of retributive justice, some crimes have a short tail. For instance, to prosecute or litigate a run-of-the mill theft from thirty years ago does not serve the purposes of retributive justice, because the underlying harm itself has also degraded over time.

But, of course, criminal and civil statutes of limitations contain many exceptions. Some relate to the seriousness of events such as murder, genocide, crimes against humanity, and in some jurisdictions, rape and other sex crimes. Even though the accuracy and fairness concerns for the defendant would seem to be heightened given the possible punishment for such grave offenses, states allow prosecution to move forward because the underlying harm has a much longer half-life, if it degrades at all. Similarly, some scholars have urged that statutes of limitations be disregarded in the reparations setting as the underlying harm has created a form of ongoing unjust enrichment for possible defendants, even if the original harm was done long ago such as with slavery. Other exceptions relate to the possible barriers victims might have faced in coming forward in a timely manner. For instance, if child victims are pervasively unlikely to come forward until they are adults and we view crimes committed against them as particularly harmful, it would make sense to extend statutes of limitations for them.

Many, but not all, #MeToo claims fall outside the existing legal exceptions. While the law as is may provide the definitive answer of whether a claim can be prosecuted or otherwise litigated, law might be a distraction in assessing the moral question of what a victimizer owes a victim. For example, if Judge Kavanaugh assaulted Dr. Ford over thirty years ago, what does he owe her (as opposed to society) and is an apology sufficient? Or to take a less politically loaded claim, what of Pastor Andy Savage’s sexual assault on a high school student 20 years ago or of Anna Graham Hunter’s revelations regarding Dustin Hoffman’s on-set sexual harassment of her over 30 years ago. While these events may be long in the past and may not reflect how the offenders would treat women now, the harm that many trauma victims suffer is often not cabined to the past, but continues through the present and alters their futures. For many victims, their security, self-respect, dignity, and self-control remain impaired until the offender takes steps to restore them.

While questions of proof do and should matter deeply in determining whether to deprive someone of their liberty, they seem substantially less pressing as between the two parties to an event. When a perpetrator knows he committed a grievous wrong, he owes a moral debt regardless of the victim’s capacity to prove the event occurred. Of course, many perpetrators will not acknowledge their wrongdoing absent compelling and publicly made proof, but that does not speak to the question of obligation.

What counts as a grievous wrong with a long half-life might, but need not, track criminal and tort law. A theft committed long ago and its harm to the victim might usually, though not always, dissipate over time. As my colleague and philosopher Heidi Hurd explained, to complain 30 years later of a minor offense might be to complain of no offense at all. Contrast this with a violent crime, unacknowledged for 30 years. Not only has the harm not dissipated over time, additional wrongs against the victim may have also been committed, such as public lies about the act in question and/or acts of retaliation.

So when we have a #MeToo claim that may not survive a legal statute of limitations, but does survive a moral statute of limitations, what does the perpetrator owe the victim? My co-authors and I have written at length about what restorative justice might mean in a setting where criminal responsibility might be unavailable. In short, it generally includes acknowledgement of wrongdoing and of the victim and her account, responsibility taking, harm repair, a promise of non-repetition, and subsequent actions that demonstrate a commitment to that promise of non-repetition.

How is this vision of restorative justice implicated by long ago events in which the wrongdoer may have changed? For the offender, the event might be properly understood in the past, but for many #MeToo victims, the long ago event altered her possible future and continues to shape her ongoing interactions and the shadow of her future. Moreover, for some #MeToo claims, the assault was highly significant and memorable for the victim, but one which the perpetrator does not remember well or at all. What then?

In such settings, the perpetrator ought to acknowledge the initial act of wrongdoing and the reasons for which the victim has a clear memory and the perpetrator does not. In addition, they need to acknowledge any harm caused by the subsequent and lengthy non-acknowledgement. Compare it to a hit-and-run accident in which the drunk driver comes forward thirty years later. The initial accident harmed the victim, but so too did the years without the ability to get information, apology, or other forms of accountability from the driver.

Another important component is harm repair. The substantial distance in time from the underlying #MeToo event means that for some, the harm continued to accrue, and thus the sort of repair needed is more substantial. Restorative justice suggests that perpetrators should also ask victims directly what they want to make things right. Some #MeToo victims want a private apology. And in some settings and for some victims, that might be sufficient, as it was for columnist Caitlin Flanagan whose attempted high school rapist apologized a few months later. Others may want face-to-face meetings in which they as the victims get to narrate the events and how the events affected them and then an explicit acknowledgement by the perpetrator that their account of the event is true. Still others may prefer a public apology and a public acknowledgement of wrongdoing. For those whose lives were seriously impacted by the event, they may want compensation for their emotional harms and the financial cost of treating it, for lost income, and for lost opportunities, or they may want such financial resources to be donated for prevention and efforts to help other victims.

Lastly, how might one filter the promise of non-repetition and its fulfillment if the #MeToo event occurred long ago. For example, if Kavanaugh did in fact assault Ford, but contrary to emerging allegations, otherwise never engaged in similar behavior or hadn’t done so for several decades, he could provide to Ford not only evidence of non-repetition, but an explanation of the ways in which he has or will reflect on the event and use that as motivation to treat women with respect as well as undertake efforts to prevent similar #MeToo events by others. He could explain how the role he has played mentoring female judicial clerks and coaching his daughter’s sports teams was not only about burnishing his résumé or being a good father and employer or generally behaving as decent human being, but a concrete commitment and contribution to changing the world that women encounter for the better. If that was not why he engaged in such good behavior, then he could still undertake a commitment now to contributing to the dialogue about #MeToo.

While my expectation is not that most perpetrators of long ago #MeToo violations will choose to engage in restorative justice, it is worth reminding people that the path is still open to them and while the criminal statute of limitations has run for many of them, the moral statute of limitations has not.