Justine Tinkler is a member of the ASA Working Group on Harassment. This article is part of a series of articles from that working group.
The #metoo movement’s attention to the persistence of sexual harassment has raised questions about whether stronger punishments would reduce the incidence of sexual harassment in the academy. Criminologists have amassed a wealth of research about the rationales for and effects of punishment (e.g., National Research Council 2014). Rationales for legal punishment vary along several dimensions, including the target, methods, and goals of punishment. Some rationales focus on the individual wrongdoer, while others address or involve the broader society. Here, we briefly discuss the most prominent rationales and contemplate how they may (or may not) inform best practices for preventing and responding to sexual harassment in our professional societies and departments.
Incapacitation focuses on prevention by physically isolating individuals who have committed crime (e.g., incarceration, banishment, or execution). Studies have generally shown weak effects of incapacitation on reducing crime. One key problem is replacement; removing one person from circulation only to have another step into the gap (e.g., drug dealing) (Miles and Ludwig 2007). Regarding workplace sexual harassment, incapacitation is analogous to terminating employment or banning members from professional societies. While this may serve the short-term goal of increasing a community’s sense of safety, it is unlikely to be a long-term solution so long as some individuals perceive harassment as a culturally and structurally available strategy for obtaining power and/or sexual gratification.
Rehabilitation focuses on changing the attitudes and behaviors of people who have committed crimes in order to promote law-abiding behavior and reintegration. Rehabilitative responses to sexual harassment often involve mandatory training for the accused. While educating harassers may be occasionally effective, one-shot training is not sufficient and can have iatrogenic effects (e.g., inciting backlash or retaliation; see www.asanet.org/promisesandpitfalls). With limited evidence that training is effective, identifying educational strategies specifically tailored to those who have harassed or abused their power is an area for continued future research.
Restoration focuses on repairing harm caused by criminal behavior (e.g., restitution or restorative justice practices like victim-offender conferencing or peacemaking circles). Again, the end goal is restoring individuals to the community once appropriate changes in attitudes and behaviors have occurred. Restorative justice practices can potentially improve community relations while affirming victims’ experiences and punishing harassers (Braithwaite 2002; Strang et al 2013). There is, however, the threat of revictimization, requiring careful consideration of the form restoration might take in the case of sexual harassment, including whether and how both parties participate.
Deterrence focuses on calibrating punishment such that the costs of committing crime are higher than its benefits. Specific deterrence aims to deter individuals who have already committed a crime (via experiencing punishment) while general deterrence aims to deter society at large (via threat of punishment). The goal is to make criminal behavior less appealing by 1) increasing the likelihood of getting caught, 2) ensuring speedy punishment, and 3) matching the severity of the punishment to the seriousness of the offense. Studies have shown that among these three elements, increasing the certainty of detection is the most effective in reducing crime, while increasing the severity of the punishment is largely ineffective (Nagin 2013). When certainty of enforcement is high, the severity of punishment increases deterrence for some crimes but there are diminishing returns as the severity of punishment rises (e.g., a $500 fine will deter illegal parking more than a $50 fine, but a $1,000 fine won’t increase deterrence much more than the $500 fine).
Much of the dismay expressed about how institutions respond to harassment focuses on the severity of punishment. A common perception is that sexual harassment persists, in part, because even when harassers are found to be in violation of university policy, they are rarely terminated and often receive light punishments (e.g., temporary paid/unpaid leave from teaching and mentoring, mandatory training). This dismay may be in part due to the intuitive appeal of retribution (“just desserts”), which punishes the individual who has done wrong, but it is also highly symbolic, promoting group cohesion around social norms (Carlsmith 2006; Erikson 1966). In order for retribution to restore group cohesion, consensus must exist about the types of behaviors that warrant particular punishments. Because sexual harassment is most often perpetrated by men and directed at women, discussions about appropriate punishments can be divisive — polarizing rather than uniting men and women. Here, it is important to keep in mind the rationale for punishment. If specific deterrence is the goal, the investigation, public attention, education, and a relatively light punishment is often effective. However, if general deterrence is the goal, a too light punishment can send the message to the broader community that the organization doesn’t take sexual harassment seriously, which decreases victim reporting and emboldens those inclined to harass.
Another implication of deterrence research for sexual harassment is that increasing the severity of punishments is unlikely to deter harassers if they perceive that the certainty of punishment is low. When sexual harassment is perpetrated in private with no witnesses, certainty of detection is inevitably low. This is particularly the case when those who harass have structural power over the victim, making reporting much riskier to the victim’s career. Increasing the certainty of punishment for more private types of harassment will mean increasing the perception among victims that people in power will be receptive to their reporting. Promoting a culture where reporting isn’t detrimental, and stigmatizing would increase harassers’ perceived threat of detection. Departments should take a multi-faceted approach to increasing this perception (see ASA’s Best Practices for Preventing Harassment).
For sexual harassment that is more public (e.g., sexist jokes, derogatory remarks, or in situations when a victim tells a friend, etc.), bystander intervention training can increase the certainty of punishment by teaching strategies for intervening when people observe inappropriate behavior (See www.asanet.org/bystanderintervention). The logic of bystander intervention is to shift the cultural norms so that observers are more likely to socially sanction harassers, affirm victims, and formally report harassment. If the onus of reporting shifts from the victim to all community members, harassers should perceive an increase in the certainty of punishment. Public shaming is another form of punishment that likely affects deterrence. To the extent that the #metoo movement has increased public attention and, in turn, increased the risk that harassers’ behaviors will be made public, we should expect the increased likelihood of social sanction to deter potential harassers.
While by no means comprehensive, we hope that this essay contributes to a fruitful dialogue within sociology about how research on the rationales for punishment can inform the most appropriate, research-based approaches to addressing sexual harassment in our scholarly community.
Braithwaite, John. 2002. Restorative Justice & Responsive Regulation. New York: Oxford University Press.
Carlsmith, Kevin M., 2006. “The roles of retribution and utility in determining punishment.” Journal of Experimental Social Psychology, 42(4), pp.437-451.
Erikson, K., 1966. Wayward Puritans. John Wiley & Sons, Inc.
Miles, Thomas J. and Jens Ludwig. 2007. “The Silence of the Lambdas: Deterring Incapacitation Research.” Journal of Quantitative Criminology 23(4): 287-301.
Nagin, Daniel S. 2013. “Deterrence in the Twenty-First Century.” Crime and Justice 42: 199-263.
National Research Council. 2014. The Growth of Incarceration in the United States: Exploring Causes and Consequences Washington, DC: The National Academies Press.
Strang, Heather, Lawrence W. Sherman, Evan Mayo-Wilson, Daniel J. Woods, Barak Ariel. 2013. Restorative Justice Conferencing (RJC) Using Face-to-Face Meetings of Offenders and Victims: Effects on Offender Recidivism and Victim Satisfaction. A Systematic Review. Campbell Systematic Reviews 2013:12