The trauma didn’t stop when Marlee Liss escaped the condo where she said she was raped. It followed her to the hospital where she had a rape kit examination performed, when she made a report to police, and finally into the courtroom.
As she relived it over and over, Liss began to feel like the system that was supposed to bring her justice was only bringing more pain.
Liss reached out online looking for another way, one where her attacker would still be held accountable, but that left the court system behind. And she found it: a process called restorative justice, along with a lawyer willing to advocate on her behalf.
In what was a first for the lawyers involved, Liss and her alleged attacker agreed to resolve the case through restorative justice. It’s a process that brings together both parties in a conflict, as well as affected community members, to discuss the issue and seek a resolution. Although it’s based in centuries-old practices cobbled together from various traditions, restorative justice is still seen as a radical and controversial alternative to traditional crime and punishment.
This September, Liss got to do what she had wanted to do since she said she was raped. She faced her alleged attacker and shared her grief. Instead of a judge or jury in a Toronto courtroom deciding his fate, Liss and the man sat in a room, with family and lawyers present, and simply talked.
The charges against him have been dropped, all parties have signed a confidentiality agreement, and the case will never go to trial. The defendant and his lawyer have agreed that Liss, her lawyer Jeff Carolin, and Cara Sweeny, a Crown attorney involved in the case, could speak publicly about the process as long as the defendant and his lawyer were not identified. Carolin passed BuzzFeed News’ request for comment along to the defendant's lawyers, but we did not receive a response.
Removing her case from the courts wasn’t an easy process, and Liss said it’s not for every survivor. However, she said she has found peace by choosing restorative justice instead of a trial. Now, by sharing her story, she hopes to show others how they can too.
Liss said she remembered every detail of the alleged assault.
It happened in the summer of 2016, when she was a 21-year-old social work student at Ryerson University. Although her memory from the night before the assault is hazy because she was drinking, she said she remembers losing track of her friends at a bar in downtown Toronto. A man, a stranger, approached her and they danced for a moment. She felt he was too touchy, so she stopped.
Liss said she left to get a cab to her friend’s condo, where she’d planned to stay for the night. She said the man from the dance floor told her he lived in the same building and asked: Why don’t they share the ride?
When they arrived, Liss’s friend didn’t answer her phone. She said the man invited her to his unit to wait for her friend to answer. Liss followed him in and lay down on his bed. Then, she said, he started pulling off her clothes.
“I was like, ‘I’m way too exhausted, I’m practically unconscious right now, you shouldn't touch me,’” she said.
Liss said the man assaulted her for hours. When it was over, she said, she snapped back into her body. She ran out of the condo half-dressed and went home. Liss said her roommate was “amazing” and literally googled “what to do when your friend is raped.”
Liss and her roommate went to the hospital, where a rape kit examination was performed. She had two options: report her assault to the police or do nothing.
“I didn’t want nothing because I did want some sort of justice,” she said. “I couldn't imagine just going home and just watching Netflix. My world felt so rocked, or more than that — imploded.”
When she made a report to the Toronto Police Service, she felt the officers asked “insensitive” questions, like how much she’d drunk and what she was wearing. She also had to go over everything in excruciating detail. In response, Toronto police spokesperson Victor Kwong, who did not work on Liss’s case personally, told BuzzFeed News that officers “can always strive to do better to explain why we ask the questions we do.”
“Questions during an interview, such as the examples you gave of ‘what she was wearing’ and ‘how much she had to drink,’ may seem inappropriate on face value, but the reason they are asked are for evidentiary and investigative purposes, not victim-blaming,” Kwong said.
The police ultimately filed charges, which put Liss’s case in the minority. It’s estimated that only 5% of sexual assaults in Canada are reported to police, and of those, a Globe and Mail investigation found that 20% are deemed “unfounded,” meaning police have decided a crime did not occur.
A year after charges were filed, Liss had to testify at a preliminary hearing. Victims both testify and are cross-examined during preliminary hearings for sexual assault in her home province of Ontario.
Liss spent five hours on the stand being cross-examined by the defendant's lawyer. By the end, she was exhausted. A few weeks later, she received what was meant to be good news: There was enough evidence to move on to a criminal trial. However, Liss said at this point, her mental health was suffering.
“It got to the point where I was suicidal,” she said. She remembered walking onto campus for the first time after the incident and having a panic attack, her body breaking out into hives. Other times, she said, she’d start shaking all over.
Liss didn’t want to go on the stand again, and she felt that prison doesn’t do enough to rehabilitate offenders anyway. She contemplated dropping the charges and trying to move on. She confided her feelings in a friend, saying all she wanted was to just confront her attacker.
“And she was like, ‘so make it happen,’” Liss recalled her friend saying. “I had never even considered looking into even trying to make it happen.”
That’s when she learned about the Forgiveness Project, a Toronto-based organization, which works with both prisoners and victims to heal after trauma. The organization put her in touch with Jeff Carolin, a Toronto lawyer who has worked on a number of sexual assault cases, usually representing the accused. He told BuzzFeed News he’s had clients who feel remorse for their actions but don’t have a way to apologize without admitting guilt and risking jail time.
When Liss came to him, the ideal path forward was clear: restorative justice. But getting there would take some work.
Restorative justice is hardly a new practice, and there’s also more than one way to do it.
The basic premise is this: Those who have done harm and those who have been harmed meet and hash out a resolution. The point is to prevent further harm in the community, have the voices of everyone heard, and provide whatever healing is possible.
The process takes cues from several sources, including reform Judaism, Islam, the Quakers, Mennonites, and Indigenous people in Canada. Its modern use in Canada dates back to what’s known as the Elmira Case. In 1974, two teens in Elmira, Ontario, went on a drunken rampage destroying properties in town. Instead of prison, the community decided the boys would face those they harmed directly and make amends.
Restorative justice has also been used for on-campus assaults and harassment at universities. At Halifax’s Dalhousie University in 2015, a Facebook group came to light in which men made misogynist and sexually explicit comments about their women classmates. The case was ultimately addressed through a restorative justice process.
Because it’s not tracked the same way as a criminal trial, it’s difficult to say how often restorative justice is used.
Chris Cowie is the executive director of Community Justice Initiatives in Waterloo, Ontario. The nonprofit is a pioneer of modern restorative justice and has been mediating cases for more than 50 years. Cowie told BuzzFeed News they’ve handled cases of sexual abuse before, though they more often occur before anyone has laid charges, or in cases of past childhood abuse.
Restorative justice has its skeptics, but Cowie said the idea that it’s a “soft” option, or an easy way out for offenders, is wrong.
“It’s bringing an offender to a place where they’re held accountable to deter future behavior,” he said.
In Liss’s case, Crown attorney Cara Sweeny was on board. Sweeny has been working with the Crown for 20 years and has seen dozens of sexual assault cases go to trial. Sweeny told BuzzFeed News that she’s seen how difficult the trial process can be for a survivor, especially if their attacker is acquitted. She worked with the defendant and his lawyer until he agreed to pursue restorative justice.
“Honestly getting the phone call that it was happening was one of the most beautiful, miraculous, emotional experiences of my life,” Liss said. “Just the fact that my voice was actually heard within the system, for the first time, and given importance.”
There’s no formal process in place for taking a case like Liss’s to a restorative justice process. The legal team reached out to St. Stephen's Community House, a Toronto charity that, among other things, facilitates community mediation. It was decided that Liss’s alleged attacker would enter therapy, and when he was ready, they would meet.
In September, Liss came face-to-face with the person she said attacked her. Liss, her mother, her sister, her lawyer, and Sweeny sat in a circle of chairs with the man who allegedly raped Liss and his friend. In the center of the ring of chairs were objects to honor the process’s Indigenous roots: some cedar and sage and a tree branch.
The first task was for everyone in the room to acknowledge each other. When it came to her alleged attacker, Liss simply said hello. Next, they each wrote down three values on a piece of paper and said them aloud before placing them in the circle’s center.
Then, Liss shared the trauma of the assault and the subsequent trauma of the reporting and trial process. She spent an hour speaking, crying, and sometimes just sitting in silence. She spoke directly to the man she said attacked her, asking why he did it. Liss had been afraid that he would sit there like stone the whole time, but she said “he was there and he felt present and was making eye contact.”
He spoke last. First, Liss said, he seemed to deny culpability. But then he shifted and broke down. She said he looked her in the eye and said, “I am so sorry for the harm I caused and I wish I could take it back.”
“I didn’t know I needed to hear that,” she said. “When he said that, I just broke down in tears and it just felt like a huge, huge relief.”
The circle went on for eight hours, with scheduled breaks. They talked not just about the assault, but about alcohol, rape culture, and trauma. They spoke about how they both had felt depressed and suicidal. He spoke of wanting to find a way to prevent sexual assault on a broad scale.
“I got way more than I wanted — a thousand percent this is what justice looked like to me from the beginning and more,” Liss said.
At the end, each attendee was once again asked to acknowledge one another. Liss’s alleged attacker asked if he could shake her hand. She said yes.
Liss knows that other survivors may not find peace in restorative justice as she did, but she wants them to at least know it’s an option.
“I think it’s essential we do ask survivors what justice means to them,” she said.
Liss has now founded the Re-Humanize Movement, an organization currently seeking charity status that will educate survivors and those in the justice system on how to seek alternate means of justice.
Sweeny, who now sits on the board of the organization, said her idea of what justice means also has been radically changed.
“It was transformative — that is the word that I keep using to describe it because it was incredible and powerful and healing and honest and incredibly, incredibly courageous for all of the people who were there, but mostly for the accused and for Marlee,” she said.
As for Liss, she said, “I want to challenge the assumption that all survivors will feel healing by having their assailants incarcerated.” ●
Marlee Liss was connected to Jeff Carolin through The Forgiveness Project, a Toronto-based group, not the UK-based group of the same name.