Pathbreaking Book on Feminism and Mass Incarceration
Many feminists grapple with the problem of hyper-incarceration in the United States, and yet commentators on gender crime continue to assert that criminal law is not tough enough. This punitive impulse, prominent legal scholar Aya Gruber argues, is dangerous and counterproductive. In their quest to secure women’s protection from domestic violence and rape, American feminists have become soldiers in the war on crime by emphasizing white female victimhood, expanding the power of police and prosecutors, touting the problem-solving power of incarceration, and diverting resources toward law enforcement and away from marginalized communities. Deploying vivid cases and unflinching analysis, The Feminist War on Crime documents the failure of the state to combat sexual and domestic violence through law and punishment. Zero-tolerance anti-violence law and policy tend to make women less safe and more fragile. Mandatory arrests, no-drop prosecutions, forced separation, and incarceration embroil poor women of color in a criminal justice system that is historically hostile to them. This carceral approach exacerbates social inequalities by diverting more power and resources toward a fundamentally flawed criminal justice system, further harming victims, perpetrators, and communities alike. In order to reverse this troubling course, Gruber contends that we must abandon the conventional feminist wisdom, fight violence against women without reinforcing the American prison state, and use criminalization as a technique of last—not first—resort.
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When I was a law student and an aspiring criminal lawyer, I always felt mired in a feminist defense attorney dilemma. On the one hand, I was intimately familiar with the harms of sexual assault and firmly believed that gender crimes reflected and reinforced women’s second-class status. On the other, I was involved in public defense and anti-incarceration work and had come to regard the prison as a primary site of violence, racism, and degradation in society. I faithfully studied and trained to represent indigent defendants against the awesome power of the state, but I did so with a nagging sense of dread at the prospect of defending batterers and rapists.
That sense quickly abated after I became a public defender and witnessed firsthand the prosecutorial machine processing domestic violence (DV) and sexual assault cases. I felt a sense of disillusionment that the feminist movement I so admired played such a distinct role in broadening and legitimizing the unconscionable penal state. As an academic, I was increasingly concerned that women’s criminal law activism had not made prosecution and punishment more feminist. It had made feminism more prosecutorial and punitive. Cases like the following involving my client Jamal and his girlfriend Britney made me lose faith in the possibility of feminist criminal “justice.” Subsequently, I continued to dread defending batterers, but I did so for other reasons completely.
JAMAL AND BRITNEY
It is the year 2000. I am a junior public defender in Washington, D.C., standing in the early morning courthouse, already buzzing with activity. Uniformed D.C. metro police lounge in groups, swapping stories and laughing among the grim-faced, confused defendants and their wide-eyed children. Inscrutable US marshals with military crew cuts enter courtrooms, accompanied by young, gray-suited prosecutors. I wait for my client Jamal, who at nineteen is childlike to me, with his teen Disney-show face, neatly done-up plats, and cool Nike kicks. Because of his immature penchant for missing appointments, I have given him my home number—he is the only client who has ever gotten that number. Years later, I will entertain a hazy memory of his 4:00 a.m. call to say, “What’s up,” just as I will have ephemeral recollections of the bright orange plastic chairs lining the D.C. Superior Court hallway and the smell of late-night sweat in the holding cells. Yes, Jamal will stick out in my mind, but not because his case is particularly outrageous or quirky. Jamal’s case is notable for its similarity to so many run-of-the-mill domestic violence cases that do not make headlines.
I am at the courthouse for the civil protection order (CPO) portion of Jamal’s case. Jamal was arrested ten days earlier after his eighteen-year-old girlfriend Britney reported that he punched her and threw a plate at her. Prosecutors have lately adopted the tactic of subpoenaing DV defendants to testify at these quasi-civil hearings, without notice to their attorneys. Much can be at stake with a CPO, such as loss of one’s home, expansive stay-away restrictions, alcohol abstention, and loss of parental rights for up to two years. Defendants often attend the hearings unrepresented, and if they refuse to testify there, judges summarily issue the onerous CPOs. Worse, some defendants take the stand and subject themselves to rigorous cross-examination, without ever consulting an attorney or understanding their right to remain silent. I am here to make sure that does not happen to Jamal.
A few minutes before we enter the courtroom, Britney shuffles up. She is equally cute and colorful, squeezed into stretch jeans, with platform flip- flops, and yellow shoulder-length braids. She asks if I am Jamal’s attorney, and I reply in the affirmative. She says, “The other lady told me I have to be here, but I didn’t want to come.” She goes on to explain that she and Jamal live together with their baby in a project called Lincoln Heights—a place, incidentally, where a young man like Jamal is lucky to make it to age nineteen without a severe criminal record or drug habit. Britney tells me that she called the police only because “I was mad and wanted him out of the house.” Even if Britney preferred the police not to arrest, police had to do so under D.C.’s mandatory arrest law. Britney explains that she does not want to pursue charges and will not comply with a no-contact order. Then, in a more hushed tone, she asks, “What if I just leave and stay gone—will they drop the case?”
So here I am, straddling the line between zealous advocacy and obstruction of justice. The answer to Britney’s question is likely “yes,” given that judges routinely dismiss cases when victims fail to appear on the trial date. By this point in my life as a public defender, I am used to DV victims asking what will happen to their boyfriends in court, how they can spare them from jail, and the like. I could give Britney a realistic assessment of the DV court process, but I hesitate, recalling with distaste the time in law school a fellow defense clinic student advised his DV client and girlfriend to marry so that she could assert marital privilege and avoid testifying. I say, “I can’t tell you what to do,” but also mention that I can take her statement.
Just as I am finishing my sentence, a young woman rushes up and inserts herself between Jamal, Britney, and me. She is blonde, no more than twenty- four, with a hip haircut and an enormous diamond engagement ring. “Domestic violence clinic student,” I think to myself. She demands, “What are you doing talking to my victim, and why is your defendant near her? He’s violating the no-contact order!” From the DV advocates’ perspective, defense attorneys are extensions of abusive men, there to intimidate and coerce victims into lying or disappearing. I tell the advocate that Britney approached us to say that she wants to drop the case and stay with Jamal. The advocate replies, “I’m sure she told you that.”
Britney turns to the woman and protests, “I don’t want to be here, and she (pointing to me) said I could leave.” Yikes. I am thinking about a recent hubbub where a well-known defense attorney was frog-marched through the courthouse in handcuffs, accused of obstruction of justice for attempting to take a statement from a reticent sexual assault complainant. “No, I told her that I could not give any advice,” I reply defensively, “but as you can see, she does not want to pursue this case.” The advocate snaps, “We’ll see about that. Come on, Britney we need to talk, away from them.” With that, she leads Britney away through the sea of humanity gathered in the bustling hall. Ten minutes later, we are all seated at counsel table. I listen as the judge orders a renewable one-year CPO, including requirements that Jamal leave the apartment and have no contact with Britney or the baby. Britney keeps her eyes locked on the table below.
I never get to take the statement, but the day before Jamal’s criminal trial Britney calls to say she is not coming. She says she tried to tell the “domestic violence lady” to drop the case but could not reach her. True to her word, Britney is a no-show. Instead of moving to dismiss the case, however, the prosecutor says he is prepared to go forward on hearsay, specifically, Britney’s initial “excited utterances” to the police (a tactic generally regarded as unconstitutional after a 2004 Supreme Court decision). Jamal decides not to risk a jail sentence and agrees to a guilty plea and deferred sentencing. In D.C., first-time DV offenders can plead guilty to assault and have the sentencing hearing postponed for several months, during which they must pay fines, go on probation, and complete “rehabilitative” programs. If the defendant satisfies conditions and stays out of trouble, the case is dismissed. If he does not, he is immediately sentenced on the DV conviction. The judge defers Jamal’s sentencing for nine months, prescribing conditions including twenty-seven domestic violence classes and ten anger management classes, at eight dollars a pop.
A month later, I receive notice that Jamal has violated the terms of his probation. Apparently, Jamal was turned away from several of the mandated classes because he could not pay. We go to court, where the judge finds Jamal in violation, enters the DV conviction, and sentences Jamal to one hundred days in jail. Jamal serves his time, while Britney struggles to pay for the apartment and baby by herself. (They never comply with the no-contact order.) Jamal moves home after his release, but the couple eventually lose their eligibility for public housing because of Jamal’s conviction. That conviction will be the first of several over the next couple of years, none for domestic violence. As for Britney, the last I hear, she is moving from place to place—and still with Jamal.
The Opening Battle: Fighting Patriarchy with Purity
The battle against sexual and gender-based misconduct is the feminist fight du jour, and it feels thoroughly modern. In recent years sexual misconduct has monopolized the attention of media, lawmakers, feminist theorists, and bloggers. Unsurprisingly, contemporary law reformers are biased to overvalue present efforts, believing that these will finally address long-existing social ills that were never sufficiently tackled. They characterize reform as the overdue fix to persistent problems rather than the latest factor in a complicated drunkard’s walk of colliding rules, cultural changes, political reactions, and social evolutions and devolutions. Rape exists as a national emergency now, feminists assert, because our sexist society historically tolerated it and past antirape efforts were feckless or failed. Domestic violence (DV) persists because criminal assault law never garnered the strength to counter the eighteenth-century legal principles of “coverture” (married women abdicate legal rights to their husbands) and “chastisement” (husbands have license to physically discipline wives).
The simplistic telling of American DV and rape law history as one of underenforcement, that is, the failure of law and legal actors to appropriately penalize male offenders, prefigures a common modern sensibility that feminists must always support stricter policing, prosecution, and punishment of gender crimes. History, however, is not so neat and not so linear. Past sexist norms and patriarchal laws permitted and punished sexual and domestic misconduct, depending on the context. Rape law’s past is one of selective enforcement, including overenforcement, depending on the gender, marital status, class, and race of those involved in the sexual encounter. Accordingly, as historian Marybeth Hamilton Arnold cautions, “A feminist politics that sees sex throughout history as simply a force for women’s exploitation is a dangerously simplistic politics.”
Another frequent presumption is that gender crime persists because past feminist efforts to strengthen criminal law were few, feeble, and failed. However, the feminist war on crime is as old as American feminism itself. Concerns over rape, prostitution, and domestic abuse lay at the very heart of the early women’s movement in the mid-nineteenth century (the “first wave” of feminism), and they played no small part in suffragists’ quest for voting rights. Nor were feminists’ anticrime efforts in vain. Turn-of-the-century feminists found success in securing antirape legislation and statutes that criminalized sex trafficking and prostitution. Feminist activists’ preferred remedy for DV—alcohol abstention—became a national priority, ushering in the Prohibition Era. The need to enforce these nascent regulatory regimes led to the expansion of the US Border Patrol and the FBI. First-wave feminists’ early battle against crime may be overshadowed in the legal literature by second-wave reforms, but it indelibly colored feminist theory and practice and continues to influence feminist law reform today.
SEX, POLICING, AND SEX POLICING
Crack open any criminal law textbook in the United States and you will find centuries-old rape cases that paint the victim (called the “prosecutrix”) as a vindictive liar or an unchaste manipulator. Until recent decades, rape law contained peculiar and exceptional legal hurdles to conviction. In rape cases, it was not enough that the defendant violently forced sex; the victim had to “resist to the utmost.” In rape cases, jurors could not rely on victim testimony as proof; there had to be “independent corroboration.” In rape cases, judges routinely gave a warning adopted from the writings of seventeenth-century jurist Sir Matthew Hale that rape “is an accusation easily to be made and hard to be proved” (the “Lord Hale instruction”). In rape cases, prosecutors had to introduce evidence that the victim had made a “fresh” complaint, that is, had reported the rape to officials within a short period of time.
The common thread among these doctrines appears to be “the cherished male assumption that female persons tend to lie,” in famed feminist Susan Brownmiller’s words. For decades, rape statutes required prosecutors to introduce independent corroboration of the victim’s claim. Because there are rarely eyewitnesses to rape, corroboration usually came in the form of serious injury. Thus, the requirement had the effect of rendering noninjurious rapes totally legal. One court of appeals rationalized the requirement: “The corroboration requirement provides an essential safeguard” because “complainants all too frequently have an urge to fantacize [sic].” One might take some comfort if this statement came from a mid-1800s rural court. But this observation of the epidemic of rape-fantasizing women comes from the federal court of appeals in Washington, D.C.—the famed D.C. Circuit—in the 1974 case U.S. v. Wiley.
One of the most disturbing archaic rape rules required that women physically resist rape “to the utmost,” even at their peril. Resistance was not only embedded in the notion that women lied but also reflective of the social equation of women’s value with their aversion to sex. The idea was that a properly chaste woman would consider ravishment (by a nonspouse) as a fate worse than death and fight tooth and nail against it. These irregular principles thwarted rape prosecutions and discouraged victims from reporting. It is no wonder that feminists regularly take them as proof positive that the American legal scheme was deliberately constructed to license men to coerce women into sex at whim.
The male sexual license account, however, does not tell the full story. Early American sex regulation was puritanical at its core. In fact, in fascinating studies of the highly sex-regulatory and patriarchal Puritan settlements, legal sociologists discovered that officials believed women’s rape accusations and aggressively prosecuted rapists, alongside fornicators. From the eighteenth through the early twentieth century, rape law formed an integral part of a complex web of restrictions and permissions that policed intercourse, procreation, and marriage. It accompanied fornication and adultery statutes to restrict lawful sex to marriage and simultaneously make all marital sex, even forced intercourse, lawful. Even sex workers, unlike wives, could legally claim rape, although they faced near-impossible obstacles to conviction. The Iowa Supreme Court opined in 1911, “Of course, a common prostitute may be raped; but it is not so likely that [defendant’s] act is by force and against her will.” In addition, murder laws carved out an “honor defense” for husbands who killed men for “invading their property” by engaging in sexual relations with their wives.
TWO (warning: excerpt contains the n-word)
The Enemy: From "The Man" to Bad Men
This chapter of feminist criminal law reform, like so much of the contemporary American story, begins in the late 1960s. It was an era of social, economic, and demographic upheaval, as well as a time of war. From the brew of social anxieties emerged a new political awareness and a new generation focused on class solidarity, antiauthoritarianism, and racial and gender justice. Students, people of color, and women took to the streets to protest the war, segregation, poverty, and unequal rights. Just as civil rights activists ranged in their radicalism from Black Panthers to NAACP leaders, so did activists in this “second wave” of feminism. In the late 1960s and early ’70s, those identifying as feminists ranged from equal-rights liberals to welfare rights radicals, lesbian separatists to proud homemakers, and institution-rejecting anarchists to lawyers.
If late sixties radicalism was a strong backlash to 1950s conservatism, the backlash to the backlash—Nixon’s war on crime—was even stronger. Crime had long been a political issue, and the racialized “war” analogy predated Nixon. The predecessor Johnson administration had prioritized tackling the socially deleterious effects of poverty through various initiatives, including law enforcement. Johnson’s labor department circulated a report entitled The Negro Family: The Case for National Action, today known as the infamous “Moynihan Report.” The report attributed poverty, crime, and social dis- placement in segregated urban areas to the “pathology” of black “subculture.” As part of the war on poverty, Johnson formed a crime commission whose recommendations culminated in the 1968 Omnibus Crime Control and Safe Streets Act, the “master plan for the national war on crime.” But it was Nixon’s 1968 campaign that put crime control at center stage of national politics.
At that time, 81 percent of Gallup respondents agreed that “law and order has broken down in this country,” and for a majority of these, “negroes” and “Communists” were to blame. Nixon capitalized on social anxieties about scruffy hippies and hostile blacks fomenting civil unrest and ran a campaign ad pledging to protect law-abiding citizens from such “domestic violence.” “Let us recognize that the first right of every American is to be free from domestic violence,” boomed Nixon’s stern voice, accompanied by images of protesters and bloody bystanders. “So I pledge to you, we shall have order in the United States.” Nixon reportedly later remarked of the ad, “It’s all about those damn Negro-Puerto Rican groups out there.” Nixon deftly employed the so-called Southern Strategy, developed during the 1964 Barry Goldwater presidential campaign, which used dog-whistle crime rhetoric to court Dixiecrats to the Republican Party. Infamous Republican strategist Lee Atwater candidly explained in 1981: “You start out in 1954 by saying, ‘Nigger, nigger, nigger.’ By 1968 you can’t say ‘nigger’—that hurts you, backfires. So you say stuff like forced busing, states’ rights, and all that stuff.”
The modern antirape and battered women movements were born in this tumultuous political atmosphere. Between the Progressive Era and the late sixties, there was little feminist action in the criminal arena. Historian Estelle Freedman notes that in the post–World War II period up until the 1970s, most rape law reform came from civil libertarians seeking to narrow criminal regulations out of concern for black defendants and sexual liberation sentiments. Moreover, until the latter twentieth century, the US criminal system contained no specific framework for intimate partner crimes. Domestic assaults and murders were prosecuted under general battery and homicide laws. The state response to “domestic disturbances” often began and ended with the police officer’s presence at the scene. With the advent of the modern women’s movement, all that changed.
Much of second-wave feminist activism grew out of the leftist sensibilities of the time and opposed Nixon and his law-and-order program. The nascent battered women’s movement was radical and antiauthoritarian at its core. In the ’70s, battered women’s shelters cropped up throughout the nation from the tireless efforts of grassroots activists. One radical ideology that deeply influenced the shelter movement was an intense aversion to the racist, sexist, Vietnam War–supporting state, aka “the Man.” Shelters were a subset of a larger radical feminist vision of alternative medical, welfare, and com- munity organizations that could operate outside of the Man’s influence. Moreover, shelter feminists saw DV as a phenomenon at the intersection of many interlocking social inequalities that occupied the Left’s protest agenda. DV, they believed, was rooted in patriarchy, exploitative capitalism, and race- and class-based subordination.
During this era, the police were the very embodiment of the Man, a “fascist” institution that drew condemnation from progressives of all stripes—from student protesters to civil rights leaders. Accordingly, radical feminists generally regarded criminal law as an oppressive institution where “relationships of domination based on race, class, and sex are continually played out,” as shelter feminist Susan Schechter put it. Indeed, the antistate sentiments of shelter feminists also made them reluctant to engage with the bureaucracies of traditional social services that were not involved with the criminal justice system; they too were, in one activist’s words, “embodiments of the top-down hierarchical, imperialistic, war-mongering society.” Shelter organizers even forwent funding, worrying that the more the state bureaucracy got its hooks into shelters, the less feminist they would be. If shelter activists felt conflicted about allying with the state welfare apparatus, surely they would actively resist the criminal system. Yet within a decade “law enforcement” became the centerpiece of feminist DV activism.
By the 1980s, experts regularly identified the proarrest, porprosecution position as a distinctly feminist position. Writing in 1984, DV victims’ lawyer and academic Lisa Lerman contrasted nonfeminist “mediation” models with the feminist “law enforcement” model: “The ‘law enforcement’ model . . . is espoused both by grass roots advocates working with battered women, and by an increasing number of court officials, police officers, and others who provide services to battered women. In general, the law enforcement model advocates formal legal action combined with punishment or rehabilitation of wife abusers. The goal is to ensure the safety of the victim and to give the abuser a clear message that society will not tolerate his continued violence against his mate.”
As for the antirape movement, it was not as antiauthoritarian as the shelter movement, but neither was it carceral in nature. In the late 1970s, activists and students came together in “take back the night” (TBTN) rallies to give voice to women’s shared fear of prowlers lurking in the dark. TBTN rallies often occurred after high-profile, if statistically rare, murders and rapes of women by strangers. Women rallied on campuses and marched at night through blighted urban areas, claiming their rights to be free of the predators lurking there. However, TBTN policy proposals were practical, not carceral. Protesters called for measures like increased security on campuses and police on the streets, free self-defense classes, and funds for crisis centers. Over time, the marches became less about rape and more about the various “violences” faced by women, including systemic, social, and institutional inequality and state violence.
In certain localities, notably San Francisco, TBTN rallies were more radical. Those protests were about rape, but primarily the rape depicted in pornography. These activists, like temperance-era white slavery crusaders, regarded pornography and prostitution as forms of modern-day servitude that entrapped and devastated the women involved and polluted larger society with their messages about women’s sexual subservience. The predator-prey narrative popular in radical TBTN protests would significantly overlap with conservative sex-panic discourse and would play a role in the coming war on sex offenders. Still, the legal reforms that grew directly out of radical TBTN efforts were not criminal but civil ordinances directed at pornographers. The feminist expansion of rape law would come later in the decidedly nonradical 1980s, when feminist lawyers and academics turned their attention to the problem of “date rape.” That revolution would happen in books, statehouses, and courtrooms, not in the streets.
Today, second-wave feminism is remembered—fondly or regretfully—for its contributions to policing, prosecution, and punishment. The prosecutorial achievements of second-wave feminism are numerous and include mandatory arrest and no-drop prosecution for domestic violence, criminalization of nonforcible sex, and prosecution-favoring evidentiary rules. By 2000, when I represented Jamal, whom we met in the Introduction, specialized DV courts and their functionaries were a firmly entrenched and growing portion of states’ criminal systems. States had widely reformed their arrest laws to encourage and even mandate DV arrests. Colorado law, for example, dictated that “the officer shall, without undue delay, arrest” DV suspects. Many jurisdictions boasted detailed DV codes designed to counteract the lenient impulses of state actors and victims. Florida law, for instance, required each state attorney’s office to adopt “a pro-prosecution policy for acts of domestic violence.” Specialized DV and sex offender regimes engendered a robust for-profit cottage industry, allowing courts to outsource treatment and super- vision from their overloaded dockets.
This increased concentration of criminal authority in the intimate realm has had profound effects. Since the 1980s, the population of sex offenders in prison has exploded, even as rape offending has precipitously declined. Arrests for domestic violence have also increased exponentially—with increases in arrests of women outpacing those of men—although arrests have declined overall and violent crime rates have reached historic lows. Today, domestic assaults are more likely to result in arrest, prosecution, and incarceration than nondomestic assaults. Women, who are more inclined than men to be violent in domestic settings versus on the street, have for several years constituted the fastest-growing segment of the prison population. And, in Jim Crow politicians’ ultimate triumph of the future, the increased penalization of the “negro crimes” of DV and rape has disproportionately harmed and disenfranchised men and women of color.
The rest of this chapter discusses how, in a few short years, the battered women’s movement transformed from a radical antiauthoritarian movement into a propolicing, proprosecution lobby. In doing so, it highlights three different feminist groups that engaged the DV issue in the 1970s and ’80s. The first group consisted of leftist antistate feminists and included shelter organizers, socialist feminists, and welfare rights activists. These feminists saw DV in the context of the larger racist, pro-war, capitalist government. Second, there were less radical, but still left-leaning, antipatriarchy feminists, including lesbian separatists and liberal feminists who regarded sexist marriage norms and male economic privilege as the driving force behind battering. Finally, there was a powerful and ultimately triumphant group I call “legal feminists,” who pursued their antibattering agenda through law reform and litigation. Legal feminists were civil rights lawyers and victims’ advocates, and they analyzed the problem of battering as a failure of the law, specifically the ineffectuality of criminal law.
The legal feminist position that stronger criminal punishment is the remedy for harmful behaviors categorized as “crimes” is ingrained in contemporary thinking. However, in the early days, few of the feminist and nonfeminist experts viewed criminal punishment as the solution to battering. Sociologists and psychologists, like radical feminists, retained deep skepticism of criminal law’s capacity to meaningfully address relationship violence. Often agnostic about the feminist political agenda, these “professional class” experts prioritized resolving relationship conflict over changing societal gender dynamics. Civil libertarians and antiracist activists counseled against aggressive police presence in minority communities. Even many police and prosecutors opined that placing DV within a traditional arrest paradigm would escalate violence and leave women worse off. The lone voices for incarceration at that time were the feminist lawyers and victim advocates, and, owing to a variety of factors discussed below and in the following chapters, they eventually spoke for the battered women’s movement.
Let me add the caveat that categorizing is inherently imperfect. There were ideological convergences between the feminist groups, especially between antistate feminists and antipatriarchy feminists. Moreover, individual feminist activists held multiple, even conflicting, views. For example, many legal feminists who pursued criminal law policies also welcomed pro- grams to secure women’s economic equality. Nevertheless, radical feminists, who viewed state-enforced social, racial, and economic inequality as main drivers of gender violence, diverged from antipatriarchy feminists, who saw violence as a near-exclusive product of sexism. Antipatriarchy feminists, who wanted nothing to do with masculinist police forces, diverged from legal feminists, who championed proarrest policies. And, as the stories below demonstrate, these divergences mattered.
The Battle Plan: Arrest is Best
In the late 1960s and early 1970s, the police were the frequent targets of leftist reprobation—the war-mongering state personified. Their violence toward protesters, enforcement of racial codes in the South, and retrograde militarization provoked vocal protest in the peacenik era. As one text on policing recounts, “Civil rights and antiwar movements challenged police. This challenge took several forms. The legitimacy of police was questioned: students resisted police, minorities rioted against them, and the public, observing police via live television for the first time, questioned their tactics.” Facing a crisis of legitimacy, police departments began to rethink the role of the officers as exclusive crime control enforcers, moving to more “holistic” approaches like community policing. The late 1970s is often called the “Community Problem Solving” era of policing.
In an influential 1979 article, “Improving Policing: A Problem Oriented Approach,” law professor Herman Goldstein urged police departments to abandon their myopic focus on interdicting crimes and to recategorize crimes as “problems.” In turn, the police could begin “identifying these problems in more precise terms, researching each problem, documenting the nature of the current police response, assessing its adequacy and the adequacy of existing authority and resources, engaging in a broad exploration of alternatives to present responses, weighing the merits of these alternatives, and choosing from among them.” The article gives the reader a sense that change was already in the air. “Police in many jurisdictions, in a commendable effort to employ alternatives to the criminal justice system, have arranged to make referrals to various social, health, and legal agencies,” Goldstein observed. “By tying into the services provided by the whole range of other helping agencies in the community, the police in these cities have taken a giant step toward improving the quality of their response.”
Given the larger focus on improving policing, it is not surprising that feminist and other experts in the 1970s scrutinized police responses to DV calls. Experts across the political and philosophical spectrum recognized the problems of officers failing to respond to DV calls, responding but doing nothing, or intervening in a way that made the situation worse. These experts, however, held diverse and conflicting views on what constituted “effective” police intervention and whether it needed to involve forcible arrest.
In 1976, when feminist lawyers in New York filed Bruno v. Codd, which articulated a battered woman’s right to her abuser’s arrest, many departments favored mediation as the initial response to domestic disturbances. At that time, there was little empirical evidence on whether arrest (as opposed to nonarrest intervention) better prevented injuries, deterred reoffense, or satisfied victims. The legal aid lawyers and constitutional scholars behind the Bruno litigation were well aware of the serious burdens arrest imposed, especially on marginalized individuals. They nevertheless presumed that arrest, with all its costs and dysfunctions, was preferable to the current system in which police exercised excessive restraint. Bruno attorney Laurie Woods argued that “the best protection for both a woman and her husband [is] to have a police officer armed with a mandatory duty to arrest, intervene.” Arrest became the official feminist position, relegating mediation to the province of retrograde sexists.
This chapter examines feminists’ persistent belief that arrest was the best way to address DV, despite increasing sociological evidence and scholarly commentary in the 1980s and 1990s to the contrary. I contend that, in addition to the general orientation of legal feminists toward law enforcement, there were two main ideological drivers of their proarrest stance. First, feminists presumed that police reluctance to arrest derived exclusively from officers’ antediluvian ideas about marital privacy and husbands’ right to physically “chastise” wives. Second, feminists were highly critical of the “neutral” family violence research school championing mediation. Those researchers, feminists maintained, were inattentive to patriarchy, blamed women and men equally for DV, and supported ineffective psychosocial interventions.
I also postulate that feminist DV advocacy shored up the coercive arrest model of policing in an era of declining faith in the model’s legitimacy. In pushing for arrest, feminists made sweeping arguments about the appropriate role of the police, such as the claim that police had a duty to arrest whenever there is probable cause. In the face of evidence that arrest could have an “escalation effect” on violence, many feminists did not rethink the proarrest program. Instead, they articulated a series of authoritarian arguments to downplay the evidence, including that mandatory arrest was not harsh enough and had to trigger serious carceral consequences. One feminist commentator in 1983 made the remarkable claim that to address DV, law professors should back off from teaching students about civil liberties. The problem of police restraint in DV, she wrote, would be “solved only by a change in the attitudes of legal educators who traditionally have focused on constitutional and other legal limitations on enforcement authority.”
OF NEANDERTHAL COPS
In the late 1970s, feminist lawyers, drawing on their experience with a subset of battered clients, concluded that arrest was the optimal way to intervene in DV, as well as what victims wanted. In pursuing impact litigation for proarrest policies, activists moved from speaking for individual clients to speaking for all women. No one can escape the limits of their own perspective, and I have little doubt that the Bruno attorneys felt confident that their picture of DV victims’ interests was generalizable. Nevertheless, it seems curious that the lawyers did not set out to systematically determine whether and which victims wanted or benefited from arrest. Moreover, they did not care to rely on the sociological evidence that family violence researchers had already produced.
Instead, the Bruno lawyers collected and presented to the courts affidavits from victims whose cases had specific characteristics: there was extreme violence; the victim wanted the police to arrest the abuser; and the officers told the victim they had no authority to arrest, or worse, defended the abuser. The affidavits painted a picture of total police indifference and non- feasance, “not because of the merits of the particular case, but apparently as a matter of policy,” as the Bruno trial court put it. It is unsurprising then that the court described the litigation’s ambition as modest—“merely . . . to compel the police to exercise their discretion in each ‘particular situation,’ and not to automatically decline to make an arrest.”
However, granting individual officers “discretion in each ‘particular situation’” was not the Bruno litigation’s ambition. Legal feminists wanted to limit officer discretion to decline arrest, which they believed officers were overusing because of sexism. Professor Kathleen Waits put the sentiment bluntly in 1985: “Society cannot rely on [officers] to use their discretion wisely in battering cases.” Thus Bruno culminated with the New York Police Department signing a consent decree with a written, legally binding, proarrest policy. The decree limited officers’ discretion to decline misdemeanor arrests and mandated arrest for felonies and restraining-order violations.16 In the decades after Bruno, activists, lawmakers, and police departments moved to even stricter policies, requiring police to “automatically” arrest in felony and misdemeanor cases alike, regardless of the “particular situation.”
To be sure, the Bruno plaintiffs and affiants interviewed in connection with the case did, in fact, desire arrest. It makes sense that they would regard arrest as best. But such would not necessarily be true of the many antiarrest and arrest-ambivalent victims whom feminist lawyers simply omitted when they formulated the agenda of the entire class of battered women. Yet today, even die-hard policing critics who recognize that proarrest DV policies are harmful and criminogenic regard the current punitive regime as preferable to the “bad old days” of police tolerance. How were feminist lawyers so successful at making the remarkably broad claim that every woman benefited from arrest?
The Weapon: Ideal Victims
Any child of the 1970s can picture the iconic poster of blonde, leggy Farrah Fawcett wearing a paper-thin red bathing suit and training a girl-next-door smile on the onlooker. Fawcett burst onto the celebrity scene in the 1976 TV series Charlie’s Angels as the stereotypical jiggly blonde in a show that sparked the phrase “Jiggle TV.” Her rise to fame was meteoric, and her feathered hairstyle can be seen throughout high school yearbooks of the time. Fawcett’s Angels replacement Cheryl Ladd later reflected on the appeal: “She was sexy, but she was giggly and kind of child-like, and, I believe, unthreatening. It was very appealing to men at a time when women were standing up for them- selves and their rights.”
For all her fame, Fawcett was not taken seriously as an actor until her dramatic turn playing a battered wife in the 1984 TV movie The Burning Bed. The movie was based on the real life of Francine Hughes, who in 1977, after thirteen abusive years, set fire to her brutally violent and controlling spouse, Mickey, while he was sleeping. Francine was charged with murder and spent nine months in jail awaiting trial. The jury found her not guilty by reason of temporary insanity. “Temporary insanity—at the time—was not a recognized defense,” Hughes’s attorney later explained. “It was a hook I used to obtain a not-guilty verdict.” Francine’s incredible story inspired a bio- graphic novel, which was adapted to a movie script. Fawcett lobbied for the role, but, she explained, “Everyone at the networks said that was not the way the audience wanted to see me.” She nonetheless won the part, and the perfect blonde spends much of the movie in bruised-face makeup, with disheveled hair and torn clothes.
The film draws the audience into the cycle of violence, with lulls in the action followed by sudden, unprovoked, and extreme brutality, including violent rape. Throughout, Francine screams, she curls fetally into a ball, she hides in closets—the tension building as Mickey’s bogeyman footsteps approach. But she does not fight back. Even in lull moments, Mickey is an execrable character, and Fawcett appears more repulsed by than affectionate toward him.
Mickey’s abuse and Francine’s captivity are enabled by his family members, with whom they live, the police, and the state government. Francine calls the cops, who do nothing. She goes to the welfare office, where the indifferent bureaucrat tells her it is a police matter. She goes to the DA, who says his hands are tied. She goes to her mother, who sends her back to Mickey. Indeed, the movie has the “right” answers to why she didn’t leave. She tried to leave several times, facing resistance from her family and the state. She finally left, only to have him get custody of their four children. She divorced Mickey, but he stayed with her, vowing to kill her if she tried to separate.
The Burning Bed was the highest-rated TV movie of the season. Fawcett received several award nominations and finally became a serious actor. Her next movie, Extremities, in which she played a rape victim-turned-vigilante, was released to great acclaim. The Burning Bed became a symbol of the battered women’s movement. It was the first TV show to flash a 1–800 DV hotline number on the screen. It received accolades from feminists and lawmakers alike. In recent times, the movie has taken on a mythological quality as the single event that galvanized the modern battered women’s movement. It has been called a “turning point” in women’s rights that “left an indelible mark upon society’s collective consciousness.” In 2017, the Washington Post credited The Burning Bed “with dramatically altering public perceptions of domestic violence—redefining it as a crime rather than a private affair and spurring the establishment of shelters across the United States.”
As the film became a runaway hit, the real Francine, her 1977 trial a few years behind her, was not doing so well. People magazine profiled Francine the week of The Burning Bed’s release. After the trial, Francine fell into a difficult period of drug use, during which she met and married Robert Wilson, who was on parole from a thirty-year armed robbery sentence. They remained married until his death in 2015. Francine had an especially volatile relationship with her nineteen-year-old daughter Christy, who was twelve at the time of Mickey’s killing. A few months before the People interview, child protective services contacted Francine about an anonymous report—it appears from Christy—that her youngest daughter was being sexually abused. CPS was unable to follow up because Francine fled the state with the girls, leaving her two sons with Wilson. Thereafter, Francine and Christy’s relationship further deteriorated, and Christy told the People interviewer that Francine had recently beaten her up. The People profile concludes with this melancholy observation: “More than a week after the argument, Christy was still sporting slight bruises under her eyes. The fading shiners seemed frighteningly symbolic of other family wounds—wounds grown deeper, darker and more terrible with each passing year.”
The real Francine was imperfect; mercurial, conflicted, and aggressive. Her attorney remarked that the movie was “not very accurate” because Francine was not the “reticent, . . . weak person” Fawcett had portrayed. In swapping her Angel persona for the battered wife, Fawcett exchanged one iconic raced-and-gendered image—the giggly, sexy girl next door—for another—the brutalized helpless victim.
In the 1970s, feminists widely recognized the importance of centering the victim in discourse and activism. Highlighting victims’ stories and experiences was important for practical, educational, and strategic reasons. Feminist advocates, for example, required an intimate understanding of their clients’ needs and perspectives. Reformers also highlighted victims’ stories to educate a public that, they believed, misunderstood the harm, causes, and magnitude of gender violence. Sometimes activists publicized victims’ experiences to dislodge preexisting stereotypes. For example, highlighting a story about a brutally raped sex worker could help to supplant society’s tenacious belief that prostitutes can’t be raped. Finally, as proarrest advocates well knew, emphasizing the plight of the victim is a winning political strategy.
There were and remain good reasons for feminists to focus on crime victims’ needs. Indeed, many feminists tirelessly fight for resources to aid vulnerable and marginalized women. Publicizing victims’ plights can also move the public and the state to provide aid and change the structures that make certain women vulnerable to violence. When it comes to criminal law and policy, however, focusing on the crime victim and her devastation is a dangerous tactic. The narrative of violent crime victimhood and what victims want has always had a political valence, and in the 1980s it took on a distinctly neoliberal and carceral bent. The ideal victim in crime-control discourse was an innocent, brutalized, middle-class, white woman or child, who (or whose family) could receive closure only through the swift and severe punishment of the monstrous offender.
The victim label confines women to one identity—the object acted upon by a private wrongdoer. “Any richer sense of the person undermines the claim of victimhood, because victimhood depends on a reductive view of identity,” law professor Martha Minow remarks. Sensing that this flattened construction can be constraining and demeaning, many choose the term survivor instead. Victimhood narratives also confine the cause of harm to the offender. To illustrate, imagine that the statement “She is a rape victim” describes a poor, undocumented sex worker of color. This individual suffers greatly from sexism, economic unfairness, racism, sex negativity, and xenophobia, but we call her a “victim” by virtue of one individual act done by a single criminal. As Minow notes, victim discourse “divide[s] the world into only two categories: victims and victimizers.”15 Accordingly, the focus on victimhood is already a subtle but powerful redirection away from structural, social, and institutional accounts of harm and toward punishment.
This chapter discusses feminists’ complicated engagement with victim- hood narratives and victims’ rights. In the 1980s, conservative politicians deftly mobilized victim images to score political points by passing popular punitive laws. Feminists also relied on victimhood stories to push their anti-DV and antirape agendas. Feminists invited discourse on, empathy with, and scrutiny of victims, and this had a significant downside. Society was all too willing to scrutinize women victims in ways feminists did not like. The public was receptive to feminist discourse that DV was a horrific and brutal crime that devastated women. Many could not, however, understand why a woman would stay with such a villain. The public was willing to see rape as life-destroying for women and to see rapists as insatiate perverts. Many had a harder time understanding why, in the absence of physical threat, a woman would not just say “no” to her date. When faced with the downsides of centering the victim, feminist commentators often flipped the script, arguing that the focus should be on the “perpetrator’s conduct” and not the victim’s feelings, character, and actions.
Feminists’ attempts to navigate the double bind of focusing and not focusing on the victim led DV and rape reformers down some tricky paths. To maintain the strategic advantages of the victim narrative, feminists had to deal with society’s notions of true victimhood. They had to preserve battered women’s innocent status and batterers’ monstrous status and explain why women stayed without opening the door to arguments that “victims choose abuse.” Antirape activists had to preserve rape as an utterly devastating crime and explain away victims’ credibility problems without conceding that complaints were ever false. As a result, feminist discourse too often portrayed DV victims as terrified, coercively controlled women, who stayed with abusers out of fear or psychological dependence. It too often described rape victims as ruined by sex and their testimonial inconsistencies as products of debilitating psychological trauma.
Feminists’ ideal victims thus looked quite similar to the victims imagined by conservative politicians. Both were innocent, anguished, preoccupied with the crime that occurred, and desirous of punishment as justice. Moreover, feminists’ reliance on trauma and damaged psychology to explain imperfect victim behavior resonated with sexist cultural stereotypes about hysterical or cognitively defective abused women and ruined rape victims. In addition, the ideal feminist victim, like the ideal war-on-crime victim, was a nonpoor white “everywoman.” Women who fell outside of the ideal often were not helped or were even harmed by policies tailored to that everyvictim. The rest of this chapter discusses feminist and conservative victimhood tropes and how those tropes moved feminist reform programs in an authoritarian direction.
The New Front: Date Rape
From the sex wars to consent, scholars widely recognize that second-wave feminists altered the legal landscape around sexual violence. Most assume that this rape law revolution originated wholly within feminism in the 1980s and that activists finally addressed the long-acknowledged problem of men coercing their dates into sex. However, this account leaves out a very important aspect of the ’80s antirape movement. It was at core reactionary—a response to the unprecedented upheaval of sexual mores and traditions in the late 1960s and ’70s. During the first wave of feminism, casual sex was entirely too taboo to parse. First-wave temperance reformers had no reason to police the boundaries of acceptable sex on a date because there was no acceptable sex on a date. The sexual revolution was a massive cultural transformation. Society moved from temptation avoidance to free love, and it had to sort out the new sexual boundaries—what was good, bad, liberated, sexist, desirable, and immoral. The old distinctions between acceptable and unacceptable sex, once mediated by marriage, crumbled. Lawmakers struggled with sexual modernity and where to draw new legal lines. Much of the action on the legal front was deregulatory. Pushed by progressive activists, including feminists, states widely decriminalized birth control, abortion, fornication, adultery, and sodomy. There was also civil libertarian agitation to protect pornography as speech and even successful sex worker rights lawsuits to legalize prostitution.
Society members, feminists among them, found themselves in a sea of newly liberated sexuality. Because women had been denied sexual subjectivity for so long, the new sexual culture reflected men’s preferences and predilections. It rapidly became clear that sexual liberation was at best a double-edged sword for women. The paradigm of male conquest and female submission continued to rule the intimacy dance. In the absence of fornication and adultery laws, the regulation of nonmarital sex became a matter of culture. Women’s chastity was governed through an ever more incoherent set of ad hoc norms: “You can wear a tank top but not short shorts”; “Drunk is okay, but sloppy drunk is not”; “Nonmarital sex is fine, but not on a first date.” People presumed that women regularly made up rapes for attention, for revenge, or to cover an affair. Feminists reacted accordingly.
The radical take-back-the-night feminists discussed in the previous chapter called for strict regulation of sex, which they viewed as the root cause of male dominance over women. This “dominance feminist” view, like the purity campaigns of old, characterized pornography, prostitution, and male-dominant sexual encounters as devastating to victims and as a social poison to every woman. By contrast, sex-positive feminists (“sex radicals”) saw in the revolution promise for women to explore and redefine their previously repressed sexuality. Sex radicals’ distaste for any form of sexual regulation gave many feminist commentators pause. Law professor Kathy Abrams critiqued sex radicals for adopting “a surprisingly laissez-faire approach—avoid legal encumbrance, and women may interrogate and re-imagine their sexuality.” On the extreme end, prostitution abolitionist Kathleen Barry accused sex radicals of enabling “male leftists [to] continue their sexual abuse of women.” A third group of feminists was less concerned about whether sex was inherently dominating or redemptive and was more preoccupied with equality and autonomy. These “liberal” feminists shaped reform in the “classic liberal ideology of privacy, autonomy, and individual choice,” as one expert noted,5 and they called on lawmakers to treat date rape like “real” rape. Together, second-wave feminists defined lawful sex in the postrevolution era and determined who among the newly liberated date sex participants was a “bad date” or a criminal meriting imprisonment.
This chapter examines feminists’ successful battle to expand rape law and establish proprosecution procedural rules. Dominance feminists hoped to craft a legal regime reflecting that sex was presumptively coerced except under the narrowest conditions of equality, mutuality, and authentic feminine desire. Liberal feminists favored a framework in which sex was lawful so long as there was “consent.” Eventually, consent emerged as the preferred regime, and the line between sex and rape was determined not by the defend- ant’s forceful and violent conduct but by the victim’s state of mind. State actors, judges, and jurors, in turn, scrutinized rape complainants and their internal desires. Rape reformers, like DV advocates, soon found themselves in the double bind of wanting society to focus and not focus on the victim. To resolve the bind, antirape feminists championed special evidentiary rules and pushed the narrative of a sex-averse, frozen-in-fright, and easily traumatized victim to explain away victims’ testimonial inconsistencies, their con- sensual behavior, and why they didn’t say “no.” This victimhood narrative was certainly bad for defendants. It also posed more inchoate risks to women’s sexual self-understanding.
From the Sexual Cold War to the New Sex Panic
In the 2010s, the rape issue reemerged, exploding into popular and scholarly discourse and gaining far more attention than the second-wave rape discussion had. Reminiscent of the media frenzy over child predators, the campus rape crisis gained a virtual monopoly on feminist, media, and public attention. Susan Brownmiller even dubbed the campus antirape movement the “fourth wave of feminism.”1 The young women just starting to define their political identities were swept up in this solidaristic protest against campus predators. Feminism became fighting sexual predators and enlisting institutional authority to do so. The cautions from scholars that rape reforms had entangled the feminist liberationist project in mass incarceration were lost in the raw emotion and media-driven fury of the campus antirape movement. Young activists doubled down on, and even expanded, some of the most problematic principles of second-wave rape reform.
The beginnings of the campus rape’s full occupation of the millennial feminist agenda—and the moral high ground—began in 2010. The Center for Public Integrity, in concert with National Public Radio, published an “extremely powerful” 104-page report and aired a multiepisode exposé on the “nightmare” of campus rape (collectively, CPI report). The report featured stories of easily preventable and poorly remedied campus sexual assault. One was the story of the rape, in 2004, of University of Wisconsin student Laura Dunn by two fellow crew team members: “That night, Dunn was drinking so many raspberry vodkas that they cut her off at a frat house party. Still, she knew and trusted the two men who took her back to a house for what she thought was a quick stop before the next party. Instead, she says they raped her as she passed in and out of consciousness.”
Dunn reported the incident to the university and the police over a year later. The state ultimately declined to pursue a criminal case. The university, after a nine-month investigation, found that Dunn’s claims could not be sufficiently substantiated and took no action. Dunn then filed a complaint against the university with the Department of Education (DOE). She argued that the university had violated Title IX of the Education Amendments of 1972 (Title IX), which prohibits universities receiving federal funds from sex discrimination, including sexual harassment. Until recent years, Title IX was primarily known as the legal vehicle for equal funding of women’s college sports programs. Today, the term Title IX is shorthand for university discipline of sexual misconduct.
Dunn argued that the University of Wisconsin had mishandled her sexual assault claim by, among other things, taking too long to investigate and relying on police interviews instead of conducting their own. The DOE found there was “insufficient evidence to conclude that the University subjected [Dunn] to discrimination based on sex as alleged.” This finding, according to the CPI report, showed the DOE to be a “feeble watchdog” whose inaction sent a message that the government did not take rape seriously. Conspicuously left out of the CPI report were the multitude of issues that raised doubts about the accused students’ guilt. According to the DOE’s letter closing the investigation, Dunn made inconsistent statements, had memory lapses, stated that a portion of the encounter was consensual, and acknowledged continued sexual relations with one of the alleged rapists. Further, Dunn told a detective that the men had admitted the rape to two witnesses, but when the detective contacted them, the witnesses said that neither of the men nor Dunn had ever mentioned the incident.
The fact that the complaint had serious issues certainly does not mean that no assault occurred, that the university used correct procedures, or that it or the DOE ultimately came to the right conclusion. The problem is that the CPI report failed to mention any evidence that undermined the “extremely powerful” nature of the exposé. The muddy and contested reality of that case fit poorly into a story intended to provoke moral outrage about institutional complicity in rape culture. Report author Kristin Jones denied that the complicating facts from the DOE letter were relevant at all. Asserting that trauma often leads victims to be intimate with rapists, the author maintained that the continued sexual contact between Dunn and the accused was not worth mentioning.
The CPI report won the prestigious Peabody Award for broadcast journalism and a Kennedy Award for human rights reporting. Obama’s newly appointed head of the DOE’s office of civil rights, Russlynn Ali, was listening. Attributing cases like Dunn’s to Bush-era negligence, she vowed to address the “plague” of campus sexual assault.11 With the stroke of a pen she did just that and changed the legal landscape in the process. Shortly after the NPR report, Ali released the 2011 “Dear Colleague Letter” (DCL), setting forth administrative guidance on how to interpret and implement the federal legislation. In a few short years, it would be known as “the” Dear Colleague Letter.
The DCL begins by citing a statistic from a 2007 Campus Sexual Assault Study (“CSA Study”) that “1 in 5” students experience sexual assault and issuing a “call to action.” It takes an expansive view of gender discrimination and makes clear that universities discriminate unless they vigorously pursue every claim of student sexual misconduct, on or off campus. The letter delineates how universities should handle these cases, which to a large extent consists of cataloguing the rights not due to the accused. Schools cannot send sexual assault cases to mediation, they cannot use a standard higher than preponderance of the evidence, and they cannot allow face-to-face confrontation. The letter’s general message is that the accused’s “due process rights” are not grounds to “restrict or unnecessarily delay the Title IX protections for the complainant.” The letter was novel in its insistence that administrators’ disciplinary punishment of students was as an essential component of gender equality in education. After issuing the letter, the DOE ramped up its investigation of and enforcement against institutions for failing to adequately address sexual assault. In the “era of enforcement” between 2011 and 2019, the government brought 502 cases against universities under Title IX.
On the heels of the NPR report, the media regularly reported on campus rape. In 2013, the press covered the troubling Jameis Winston case. Florida State University, the Tallahassee police, and the Florida state attorney hushed up a credible rape allegation against Winston, FSU’s star quarterback. After a sham investigation, the state attorney went against the complainant’s wishes and closed the case without charges. Nine days later, Winston became the youngest person to win the coveted Heisman trophy.
Receiving substantially more national press was the case involving Columbia University undergraduate student Emma Sulkowicz. In 2014, Sulkowicz used a “performance art” piece to bring attention to campus rape in general and her own case in particular, which the university had resolved in favor of the accused, Paul Nungesser. The performance, entitled “Carry That Weight,” involved Sulkowicz hefting a twin mattress—the “scene of the crime”—around campus. The campaign engendered communal mattress- carrying rituals in colleges throughout the nation. The popularly dubbed “mattress girl” went on to win the National Organization of Women’s “Woman of Courage” award and to attend Obama’s 2015 State of the Union Address as a guest of Senator Kirsten Gillibrand.
Just before Sulkowicz and Nungesser’s 2015 graduation, Nungesser sued Columbia for supporting Sulkowicz’s “outrageous display of harassment and defamation.” In July 2017, after much legal wrangling, Columbia settled with Nungesser and issued a statement: “Columbia recognizes that after the conclusion of the investigation, Paul’s remaining time at Columbia became very difficult for him and not what Columbia would want any of its students to experience. Columbia will continue to review and update its policies toward ensuring that every student—accuser and accused, including those like Paul who are found not responsible—is treated respectfully and as a full member of the Columbia community.”
One of the most a memorable media moments came on November 19, 2014, when Rolling Stone magazine published the explosive nine-thousand- word article “A Rape on Campus: A Brutal Assault and Struggle for Justice at UVA.”21 In it, author Sabrina Erdely describes in excruciating detail a violent gang rape perpetrated on a University of Virginia freshman by seven fraternity brothers. The story gripped a nation already concerned with cam- pus rape, and it went on to be the most-read noncelebrity article in Rolling Stone’s history. Its publication fomented massive campus protests and forced UVA’s associate dean of students and Sexual Misconduct Board director Nicole Eramo to resign. The administration suspended all Greek organizations, including the accused fraternity, which was vandalized the day after publication and whose members received death threats.
Erdely had read the temperature of the country on the campus rape issue, and before starting to investigate she pitched her article about a horrific cam- pus rape and callous administrative indifference. Now she just had to find the facts that fit the narrative. Erdely consulted with former sex crimes prosecutor and activist Wendy Murphy, who had a well-established reputation for antirape zealotry: she had once compared the accused—and innocent— students in the Duke Lacrosse rape case to “Hitler.” Erdely and Murphy chose the University of Virginia, Playboy Magazine’s number one “party school,” as the focus of the soon-to-be exposé. Erdely shortly produced a story that, two years later, the magazine’s lawyer would describe as “the worst thing to ever happen to Rolling Stone.”
The article begins with the rape of the protagonist, “Jackie,” at the hands of frat boy Haven Monahan (called “Drew” in the article) and his confederates. It meticulously, if not pornographically, depicts the type of brutality that news articles typically summarize as “indescribable”:
There was a heavy person on top of her, spreading open her thighs, and another person kneeling on her hair, hands pinning down her arms, sharp shards digging into her back, and excited male voices rising all around her. When yet another hand clamped over her mouth, Jackie bit it, and the hand became a fist that punched her in the face. The men surrounding her began to laugh “Grab its motherfucking leg,” she heard a voice say. And that’s when Jackie knew she was going to be raped.
She remembers every moment of the next three hours of agony, during which, she says, seven men took turns raping her, while two more—her date, Drew, and another man—gave instruction and encouragement. . . .
As the last man sank onto her, Jackie was startled to recognize him: He attended her tiny anthropology discussion group. He looked like he was going to cry or puke as he told the crowd he couldn’t get it up. “Pussy!” the other men jeered Someone handed her classmate a beer bottle. Jackie stared at the young man, silently begging him not to go through with it. And as he shoved the bottle into her, Jackie fell into a stupor, mentally untethering from the brutal tableau, her mind leaving behind the bleeding body under assault on the floor.
The article further reported that Jackie’s friends “launched into a heated discussion about the social price of reporting Jackie’s rape, while Jackie stood beside them, mute in her bloody dress.” Her friend “Cindy” lamented, “She’s gonna be the girl who cried ‘rape,’ and we’ll never be allowed into any frat party again.”30
Winding through the article’s striking depictions of brutality and collegiate pecking order is a prosecutorial “no-drop” point: schools must do more to prosecute and punish sexual assault, even if against the victim’s wishes. Although sympathetic to Jackie’s desire not to pursue the matter, Erdely is less tolerant of the university’s policy of allowing hesitant victims to control case outcomes. She states, “Like many schools, UVA has taken to emphasizing that in matters of sexual assault, it caters to victim choice. [But] the sheer menu of choices, paired with the reassurance that any choice is the right one, often has the end result of coddling the victim into doing nothing.” The article directs its strongest fire against Eramo, characterized alternately as a detached bureaucrat and a false savior. The article charges that survivors contacted “Dean Eramo, whom they laud as their best advocate and den mother,’” but that “few ever filed reports with UVA or with police.”
Within weeks of its publication, the story publicly fell apart. An ever- expanding trove of information cast doubt on Jackie’s narrative and the integrity of Erdely’s reporting techniques. Jackie, the evidence indicates, just plain made up the gang rape story. Incredible as it sounds, Jackie was the rape ringleader Haven Monahan/Drew. Jackie established the fictional Haven’s digital persona to make her crush, Ryan Duffin, jealous. She sent Haven’s picture—a picture of some random guy from her high school—to her friends, including Ryan, proclaiming Haven her new crush. The events then turned surreal.
A few weeks before the alleged rape, Jackie asked Ryan to gain intel on Haven’s feelings for her by pretending to be a female friend, “Brianna,” and texting Haven. Ryan agreed, and Brianna/Ryan engaged in many text con- versations with Haven/Jackie. Haven professed his love for Jackie and frustration that she liked some “other guy.” Eventually, Ryan texted Haven that he was not Brianna but a male friend of Jackie’s. Haven then “realized” Ryan was the “other guy” and castigated Ryan for being distant toward Jackie because she was a “phenomenal” person and terminally ill. Concerned, Ryan texted Jackie, who confirmed, “I’m dying.” A week before the “rape,” Haven texted Ryan that he had convinced Jackie to go out. The day before, Haven texted, “Tomorrow night I plan on wooing her and, by gum, woo her I will!!” The next night, Ryan found himself comforting a distraught Jackie, who said that the nonexistent Haven made her perform oral sex on several frat guys. Looking back on it, Ryan, who was only seventeen when the texts began, reflects, “I was wondering how I didn’t see through it way earlier.”
This fantastical tale of teenage digital catfishing would have been easily discoverable if Erdely had contacted any of Jackie’s friends or tried to deter- mine whether Haven existed. Erdely defended her decision not to do so because Jackie had said further investigation would cause her trauma. But, in keeping with her criticism of the university’s inaction, Erdely’s compassion for Jackie’s trauma did not stop her from writing the story, despite Jackie’s increasing resistance to its publication. Two years later, during Eramo’s successful multi-million-dollar libel suit against Rolling Stone, Erdely cried when a lawyer read Jackie’s text urging a friend not to speak to Erdely because the story was a “witch hunt” and a “disaster.”
Feminists’ more than century-long battle against abusers and rapists is far from over. As with the war on terror, there is an endless supply of frightening bad guys who inspire fear and loathing and have symbolic political meaning. The feminist penal regimes implemented in the 1980s and 1990s are now entrenched institutions overseen by prosecutors, advocates working for the courts, administrators, and for-profit actors with vested interests in their continued survival. Politicians are certainly not apologizing for VAWA as Clinton did for the 1994 Crime Bill that enacted it. Moreover, plenty of feminists, veteran and ingenue, remain committed not just to upholding the existing feminist crime control regimes and closing “loopholes” in them but also to creating new ones—new antitrafficking laws, revenge-porn laws, laws against hosting prostitution ads, laws against coercive control in relation- ships, laws against stealth condom removal. Emboldened by a modern anti- trafficking consensus so powerful that Trump has touted preventing sex trafficking as justification for his wall, prostitution abolitionists have redoubled efforts to criminalize commercial sexual activities.
The punitive logics intensified by the campus rape crisis and the #MeToo movement have already affected criminal law and policy. Campus antirape sentiments have proven a boon to prosecutors eager to implement strict versions of affirmative consent, adopt “trauma-informed” case processing, and expand proprosecution trial rules. Interestingly, some of the most ardent prison critics remain untroubled by this. They proceed as if there were a carve-out to the mass incarceration critique for sexual misconduct—including, or perhaps especially, intoxicated sex or sex without affirmative consent—even though there is no such carve-out for aggravated assault, drug dealing, or even murder. When it comes to these serious but nonsexual crimes, many feminists are willingtoexerciseempathyforoffenders,lookto structuralcauses,andrejectstateviolenceasthesolution.
The exception for sexual offenses is so taken for granted that few feel the need to mention it or stray from the presumption that sex offenders are just a small minority of those swept up in mass incarceration. However, the reality according to a 2015 Bureau of Justice Statistics report on the US prison population is that sex offenders, at 12.4 percent, constitute a higher percentage of prisoners than burglars and nonsexual assaulters (both approximately 10 percent) and nearly as high a percentage as all drug offenders (15.7 percent).3 But because of the silent exception made for sexual offenses, mass incarceration concerns have not diminished political and popular support for carceral feminist activism as it moves ahead full throttle with new criminalization proposals.
YELLOW SLAVERY AND MORAL PURITY, REDUX
In early 2019, the press was all a-twitter with the revelation that the police in Jupiter, Florida, had caught Robert Kraft, the billionaire owner of the New England Patriots, receiving sexual services from two women at the Orchids of Asia Day Spa. The case cast a spotlight on the type of human trafficking interdiction that has become popular among prosecutors (many of whom claim to be “progressive prosecutors”) and police departments. In October 2018, Jupiter police detective Andrew Sharp became suspicious of Orchids after he read postings about the spa’s sexual services on www.rubmaps.com. He confirmed his suspicions by observing that only men went into the day spa. Sharp directed a health inspector to search the spa, under the pretense of checking to see if the female owner-operators or employees were illegally residing there. The inspector interviewed the women and took pictures of a refrigerator where the staff kept snacks.
Although the inspection report did not find unlawful habitation, Sharp regarded the fridge as smoking-gun evidence that prostitutes were enslaved and forced to live inside a brothel. He directed officers to follow men leaving the spa, wait for the men to commit any minor traffic infraction, and pull them over and question them about Orchids. Apparently, several men admit- ted to sexual activity like manual stimulation. In January 2019, citing evidence of “trafficking,” the police obtained a “sneak and peek” warrant for the spa, after which they faked a bomb scare so they could evacuate the spa and install video cameras inside. For five days officers monitored and recorded activities in the spa in real time.
The police arrested and charged twenty-five men with misdemeanor solicitation. Also arrested and charged were four women who worked at the spa: the owner, fifty-eight-year-old grandmother Hua Zhang, the thirty-nine-year-old manager Lei Wang, forty-three-year-old Lei Chen, and fifty-eight-year-old Shen Mingbi, who gave Kraft the hand job and whose face is now splashed across the web. Announcing the charges in a televised press conference, state attorney for Palm Beach Dave Aronberg began with the observation that human trafficking was “modern day slavery” and “evil in our midst.”10 Aronberg counseled that “the cold reality is that many prostitutes in cases like this [have been] lured into this country with promises of a better life.”11 Aronberg reassured his audience that arrested women could be eligible for expungement of charges or protection against deportation “if they speak up” about trafficking. However, when pressed by the media, Aronberg admitted that the case did not actually involve trafficking. A few months later, an assistant state attorney would confirm in court, “There is no human trafficking that arises out of this investigation.” This did not stop the New York Times from blaring the headline, “‘The Monsters Are the Men’: Inside a Thriving Sex Trafficking Trade in Florida,” accompanied by a story printed in English and Chinese.
The state promptly offered plea deals involving community service and fines to the men who had been secretly, and likely unconstitutionally, surveilled. The Asian female Orchids employees, by contrast, were hit with an array of felony and misdemeanor charges related to prostitution and profiteering and faced a maximum of fifteen years for the felonies and up to a year for each of the misdemeanors (Zhang and Wang were charged with twenty-six). Unable to post bail immediately, Wang, the former manager, spent six weeks in jail, where inmates asked if it was really her on TV. All the women had various bank accounts and assets frozen for possible forfeiture. Zhang’s lawyer, Tama Kudman, attributed the fact that her client was facing decades in prison to racial “stereotypes” of helpless trafficked Asian women, adding that Orchids employees, in fact, “were in their 30s and 40s” and “held multiple massage and cosmetology licenses.”
To be sure, the discourse justifying modern-day “brothel” rescue raids is disturbingly reminiscent of the yellow slavery panic of late 1800s, discussed in chapter 1. Trafficking experts Grace Chang and Kathleen Kim write that today, “Symbolically, ‘trafficking’ has regressed to stereotyped images of poor, uneducated, and helpless young women and girls, forced into prostitution, reminiscent of historical conceptions of ‘white sexual slavery’ at the turn of the twentieth century.” When Detective Sharp’s colleague Michael Fenton applied for a warrant to search another Florida massage parlor, Bridge Foot Massage and Spa, he stated in his application that the spa used a “standard Asian model,” meaning a “place to operate prostitution under the guise of a massage therapy business.”
In 2005, the FBI in coordination with local authorities executed one of the largest prostitution interdiction raids in US history, “Operation Gilded Cage.” Between 5 p.m. and 6 p.m. on a Thursday evening in San Francisco, four-hundred-plus officers descended upon Korean-owned massage parlors and businesses suspected of human trafficking. “I thought they were going after Osama bin Laden,” said a neighbor. “There were many people running at full speed. I thought there was a terrorist attack.” Another bystander saw the rescued women—there were 102 in total—led outside in handcuffs. By the time advocates for the women arrived, the government had already placed most in immigration detention. Officials had already begun sorting out who was a “voluntary” sex worker (immediately deportable) and who was a “trafficked” woman who could cooperate with the government and receive immigration protection. A San Francisco Chronicle reporter explained their status: “The women can at any time decide to return to South Korea, although law enforcement officials could then declare them a ‘material witness’ to the case, forcing them to stay in the United States without any benefits.” Indeed, Chang and Kim reported that this was precisely what had happened to one “uncooperative” victim who was “denied . . . the ability to return to Korea and held . . . in jail as a material witness for the case.”
From the second wave to today, antiprostitution feminists have supported, even championed, law enforcement raids to rescue—as in arrest—the primarily poor and minority women engaged in commercial sex. Consider the case of Rhode Island, where from 1980 to 2009 “indoor” prostitution was legal. In 1980, a lawsuit by a sex workers’ rights group challenging the felony prostitution law prompted legislative change.25 The state legislature decided to make prostitution a misdemeanor to promote more widespread enforcement. However, in amending the statute, the legislature deleted the language that made sex for money a crime, leaving illegal only the attendant acts like loitering for prostitution, transporting, and profiteering. Nevertheless, the police continued to raid indoor sex establishments, until a 2003 parlor raid, “Operation Rubdown,” led to a state trial court ruling that confirmed that the act of prostitution was not itself a crime and dismissed charges against several women. The case coincided with a wave of public frustration over the growing number of Asian massage parlors in Providence. It spurred several legislative attempts to recriminalize indoor prostitution, which all stalled because of civil libertarian concerns over arresting the women.28 That is, until 2009, when Democratic House member Joanne Giannini joined with Donna Hughes, a Rhode Island University women’s studies professor and activist, and reframed the issue as antitrafficking and gender justice.
Giannini reformulated the prostitution-criminalization bill to include, for those being charged with prostitution, an affirmative defense of being trafficked and introduced it with a tough-on-trafficking bill. This effort drew the attention of the Rhode Island antitrafficking coalition, and although it did not take an official position on recriminalizing indoor prostitution, it held rallies on the eve of the vote to support the entire legislative package. Progressives in the Senate asked advocates why criminalization of the workers was necessary, given the provisions intensifying penalties against traffickers and buyers. Feminist activists and the police responded that it gave the officers the necessary tools to raid brothels, pursue evictions, and force victims to cooperate in prosecutions of traffickers.
The criminalization effort drew strong objections from the ACLU, NOW, and anti–domestic violence groups. “The truth,” Hughes rejoined, “is that these very groups are to blame for obstructing efforts to equip police to protect victims of trafficking.”34 Korean spa workers, many using translators, met with legislators to urge them not to pass the bill. Fifty-three-year-old Sunyo Williams asked lawmakers to hold off until her twenty-year-old daughter graduated college. “I need a little more time to help my daughter,” she said. Asian workers also testified during the bill’s hearing. One thirty- one-year-old explained that providing services to men who are “depressed or who just can’t meet girls” earned her far more than the $7 an hour she could otherwise earn with no education. Despite these voices, the bill passed, and now, ten years later, a resolution to study decriminalizing prostitution is under consideration by the Rhode Island legislature.
Famed civil libertarian David Cole wrote in 2011 that the United States might finally be “turning the corner on mass incarceration.” Cole remarked that “the tragedy of the United States’ forty-year incarceration epidemic . . . is old news.” The “new news,” Cole said, is formerly tough-on-crime legislators’ incipient willingness to reduce sentences and embrace “alternatives to incarceration.” Change does seem to be in the air. According to the Bureau of Justice Statistics’ 2015 report on prisoners, the total number of incarcerated individuals declined by more than 2 percent from 2014.4 Minorities enjoyed the benefit of this change, with the black prisoner population declining by 3 percent. The latest statistics show the prison rate continuing this very modest path of decline. In the last few years, “criminal justice reform” became a bipartisan issue. The Republican power broker Koch brothers even adopted reducing incarceration as an important pet project. In 2015, Republican senator Chuck Grassley introduced the Sentencing Reform and Corrections Act (“Sentencing Act”), the first serious congressional effort to reduce federal sentences.
However, other forces have muted this across-the-aisle turn to tolerance. In May 2017, Attorney General Jeff Sessions reversed the Obama-era policy that had directed prosecutors to use charging discretion to blunt the force of the draconian federal drug-sentencing regime. Sessions ordered federal prosecutors to vigorously pursue the highest mandatory drug sentences, without retaining even the exceptions that had existed under the Bush administration. In addition, Trump’s revival of public loathing of criminals stoked Republicans’ long-standing fears of appearing soft on crime. The Sentencing Act stalled in these shifting political sands. But even if the Trump administration’s renewal of American lust for punishment had not derailed it, the Sentencing Act still would not have reduced sentences across the board. The act’s compromise for lowering drug sentences was creating new mandatory minimum sentences for domestic violence crimes. And, as we discussed in chapter 4, given the limited jurisdiction of federal criminal law, those penal- ties would have been distributed in idiosyncratic and unintended ways.
Feminist criminal law discourse, as it did in the 1990s, allows progressive politicians and some self-described “progressive prosecutors” to continue to leverage crime control for political benefit. They can oppose the costly prison problem, while getting tougher on the offenders who liberals agree are the “worst.” And for many progressives, when rape and domestic violence criminalization are mentioned, all the problems endemic to criminal prosecution and punishment—racial inequality, prison sexual abuse, inhumane conditions, eco- nomic marginalization—simply vanish. Today, feminist criminalization initiatives to broaden rape law, increase DV sentences, and crack down on commercial sex thrive in the way that sex offender laws did during the predator panic.
Millennial feminists can yet transform feminism from a movement that maintains the US as a prison nation to one that actively opposes the penal system as racist, neoliberal, uncivilized, and bad for women. It is doubtlessly difficult to maintain an institutional opposition to the prison system in the face of spectacular stories of bad men getting away with brutal crimes against women. Nevertheless, feminists can find space, even during this “cultural revolution” when condemning bad men is all the rage, to direct feminism away from punishment. There will always be horrific crime stories, but we will never incarcerate our way to gender equality and nonviolence. In short, I am asking feminists to recognize that mass criminalization is a paramount problem and to “turn the corner” on the feminist war on crime.
To be sure, recognizing the costs of feminist criminalization can leave the justice-minded feeling hopelessly adrift between toleration of private male violence and complicity with the penal state. Here I offer feminists a three- step path away from criminal law and toward noncarceral gender justice. The first step is to adopt a new theoretical framework, a “neofeminist” approach, that breaks from the orthodox thinking that entangled feminism with mass incarceration. This approach continues to prioritize countering gender violence but rejects feminism’s victimization narrative, reliance on criminal authority, and prioritization of (white) women’s interests over larger social equality. The second step is to withdraw support for existing and future carceral programs erected in the name of gender justice that produce neither gender equality nor justice. The third step is to redistribute feminist financial, academic, and political capital toward programs that address gender violence and counter mass incarceration. Here, I seek only to point feminists in a better direction, not to offer blueprints.
"Gruber offers an exciting and brave book that tackles the cause and effect between gender-based violence, mass incarceration, and a broken legal system."
“This interesting, densely written, challenging book illustrates the phenomenon of unintended consequences. . . . Following from Gruber’s main point that now is the time to recognize that incarceration is not a solution, the state should concentrate on increasing the resources available to women affected by domestic violence, sexual assault, and rape. . . . Highly recommended.”
“Gruber brings to light the ties between feminist movements and mass incarceration in this deeply researched, timely analysis."
“Gruber . . . not only diagnoses what’s wrong with mainstream, carceral feminism but also helps us plot a way forward."
“Gruber has made an important challenge to the prevailing orthodoxy regarding sexual violence, one that will be informative (and, hopefully, persuasive) to radicals, conservatives, and moderates alike.”