The Legal Rights Center has employees and contributors from a variety of different backgrounds, and we invite all our staff and volunteers to contribute to conversations on the topics of racial justice, the criminal justice system, and many more. This is one such piece from Omi Strait, the summer communications assistant for the LRC.
One of the most common responses I’ve heard to the proposition of abolishing or defunding police and prisons is “What about sexual assault? What is going to happen to the rapists? You should be ashamed of yourself for trying to take away protection for those most vulnerable. You’re not a feminist.” My first reaction to this response is that it assumes that accountability for sexual violence is only legitimate through punitive responses, and therefore that abolition and gender justice are oppositional. However, my understanding of feminism and abolition is that they are both supposed to be liberatory. So how can feminism rely on institutions like the prison industrial complex (PIC), which is incredibly harmful and racist, to fulfill its goals? How did mainstream feminism become synonymous with, and lend legitimacy to, carceral responses to sexual violence?
In the 70s and 80s, the feminist movement took up the issue of gender violence, which was very positive in that it raised awareness around sexual and domestic violence. However, it coincided with, and encouraged, the growth of the PIC and devastating effects of the “law and order” era. Thus, the coinciding mainstream “feminist” ideology of the time, which relied on the penal state to achieve gender justice, has been dubbed “carceral feminism.” The movement of the 70s and 80s was initially based on several radical notions that Marie Gottschalk describes, including “... that violence against women was a fundamental component of the social control of women… that abused women needed to be transformed from victims into survivors… that reliance on the state for solutions risked co-optation… and that the ultimate solution to rape and domestic violence rested on overhauling the relations between men and women” (emphasis added) (Gottschalk 122). However, because of a variety of reasons - including differing ideologies in the feminist movement, a history of mainstream feminists encouraging punitive responses to gender violence, and the political feasibility of “tough on crime” policies - the movement largely turned to the criminal legal system as the solution to sexual violence.
Unfortunately, the few benefits that the criminal legal system can offer in response to sexual violence do not extend to all people. Communities that have been historically harassed, surveilled, and brutalized by the police and prisons - like queer, BIPOC, undocumented, and low-income communities, as well as those with mental health issues - will sometimes end up being harmed by the very institutions they call upon for help. For example, Professor of Women’s and Gender Studies at the University of Alberta, Chloe Taylor, writes that many undocumented immigrant women, when calling the police to intervene in domestic abuse, have instead been arrested and deported. Furthermore, “Women of color, poor and homeless women, people involved in the sex trade, and queer and trans people are reasonably wary of involving the police in cases of gender and sexual violence because the police are among the most frequent perpetrators of sexual crimes against these populations” (Taylor 32).
Even if an individual is brought into the criminal legal process, a guilty conviction is still not guaranteed. Few people who have been sexually violent are put behind bars and, in addition to a low chance of conviction, the criminal legal system is often retraumatizing for survivors — so much so, Meloy and Miller write in their book, that many survivors choose not to come forward because of the “second victimization they face in the criminal legal system” (Meloy and Miller 46). The criminal legal process decenters the survivor as the act of sexual violence becomes adopted by the state as a crime, and thus follows strict procedures regardless of the survivor’s wishes - this is especially harmful given that for many survivors of sexual violence, they need “above all [to] have choice and input into the resolution of their violation” (Koss and Achilles 2). On top of that, University of Richmond law professor Erin Collins writes that “jurors continue to acquit or convict based on gendered and racialized rape myths that persist despite legal changes” (Collins 370). The very definition of sexual violence has changed throughout history based on identity and how those identities were defined through property and power (being property, owning property, having power, no power, etc). This is still relevant today. In addition to invalidating survivors with marginalized identities, the criminal legal process is also more likely to convict people of those same identities, and with harsher sentences. For example, when the death penalty was used as punishment for sexual assault, it was overwhelmingly used against Black men convicted of raping white women (Gottschalk 131). Finally, because the goal of prosecution is to win cases, Kristin Bumiller writes that prosecutors will “selectively bring forth cases involving ‘good victims,’ especially women whose behavior conforms to traditional expectations and whose assaults involve unambiguous circumstances” (Bumiller 11). Therefore any survivor whose experience or identity doesn’t match these expectations, may be abandoned by the criminal legal system. Thus, few survivors are treated with credibility, even less so if they hold marginalized identities, and few people are held accountable, especially if they hold privileged identities (e.g. cisgender white men).
Many survivors of violent crimes prefer not to rely on incarceration for justice or accountability. So, given that the criminal legal system may not be a satisfactory option for everyone, what alternatives are out there? Restorative justice is one of several. The umbrella term “restorative justice” describes a set of practices that can involve all individuals affected by an instance of violence, which can include the person responsible for the harm, the survivor, and the secondary victims such as family and friends of those directly involved. Mary Koss and Mary Achilles write that restorative justice views “crime as a violation of people and relationships, causing harm for which offenders and communities are accountable and have an obligation to repair” (1). Instead of utilizing punitive measures, restorative practices focus on restoring trust within communities after harm has been done. Therefore, instead of asking which laws were broken and how the responsible person should be punished, restorative justice practitioner Sujatha Baliga writes that “restorative justice asks, “‘Who was harmed? What do they need? Whose obligation is it to meet those needs?’”
Alternatives to the criminal legal system are becoming more well known and accessible. Many organizations and activists, such as Common Justice or Leah Lakshmi Piepzna-Samarasinha, do not use punitive responses to address violence (sexual or not). Regarding restorative practices, research shows that survivors are far more satisfied with restorative justice outcomes than the court system and are significantly less fearful of revictimization. Restorative justice methods can help to empower survivors since they prioritize survivors’ needs and put survivors in control (Baliga). Furthermore, people who have been sexually violent are more likely to complete restitution obligations and commit fewer and less serious crimes than their counterparts who instead go through the criminal legal system (Meloy and Miller 167). One study done in California found that juveniles who participated in a restorative justice program were 44% less likely to reoffend compared to those in the traditional criminal legal system (Baliga).
While restorative justice may not be a universal solution, neither is the prison system. The search for and application of justice needs to be specific (to the individuals and the circumstances) and sustainable (attending to the underlying causes) per context. Not every instance of sexual violence is equally destructive, and not every sexually violent person may have equal potential for transformation. However, as we look for methods of accountability, we must listen to the voices of feminists of color, like Tarana Burke, who have known for years (from theory, data, and lived experiences) the necessity of “strategies and analysis that address both state AND interpersonal violence.”
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