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

The #MeToo and #TimesUp movements have cast new light on the alarming prevalence of sexual violence. Despite this increased attention, the criminal justice system addresses sex crimes insufficiently. Conviction rates are low; incarceration rates are lower. Meanwhile, offenders hesitate to admit responsibility and engage in healing conversations with victims due to fears of liability. This reality undermines not only retribution and deterrence, but also restoration and rehabilitation. In light of these issues, some theorists have suggested replacing criminal prosecutions of sexual assault with diversionary models grounded in restorative justice. While these proposals have some merit, this Comment argues that their implementation may be unwise at this time. The use of restorative programs for sexual assault is underexplored, may cause harm, and is unlikely to occur at scale. Alternatively, this Comment suggests that criminal law can learn from and incorporate a key insight of restorative justice: the value of apologies. It argues that apologies for sexual assault are highly valuable. They provide psychological benefits to victims and offenders, may improve litigation outcomes, and facilitate the consequentialist goals of criminal punishment. They also have high retributive value, carrying significant moral weight and serving a punishing function. To encourage defendants to apologize for sexual assault, this Comment proffers and defends a narrowly tailored, exclusionary evidence rule 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. This exclusion will facilitate restorative justice and the goals of criminal punishment, minimize the negative impact on the truth-seeking process of trials, and encourage private and public accountability for sexual violence. [ABSTRACT FROM AUTHOR]

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