The Feminist and The Sex Offender

Confronting Sexual Harm, Ending State Violence

Erica R. Meiners, Judith Levine, Erica Meiners

• Publisher: Verso
• Year: 2020
• Print ISBN: 9781788733403
• eBook ISBN: 9781788733427
• Topic: Social Sciences
• Subtopic: Human Rights
• Index: Social Sciences

With analytical clarity and narrative force, The Feminist and the Sex Offender contends with two problems that, despite their inextricable linkages, are typically siloed in the era of #MeToo and mass incarceration: sexual and gender violence, on the one hand, and the state's unjust, ineffective, and soul-destroying response to it. Levine and Meiners ask if it's possible to confront the culture of abuse, to hold harm-doers accountable, without recourse to a criminal justice system that redoubles injuries, fails survivors, and retrenches the conditions that made such abuse possible. Drawing on personal experience, reportage, and history, The Feminist and the Sex Offender develops an intersectional feminist approach to ending sexual violence. It maps with considerable detail the unjust sex offender regime while highlighting the alternatives we urgently need.

PART I

Feminists Confront Sexual Harm

1

Anti-violence Feminisms

In January 1971, New York Radical Feminists, a small group of white left-wing women, convened a “rape speak-out” at a church on Manhattan’s Washington Square. Before a packed audience of 300, forty witnesses gave testimony. It may have been the first time American women gathered publicly to expose sexual violence without self-blame, shame, or apology.

One speaker recalled the grade school ritual of “depantsing,” where boys chased girls to an empty lot, pulled down their underpants, spread their legs, and looked. Another woman had been raped by a gynecologist; a third was instructed by her psychiatrist to masturbate in front of him. Women told of rape by husbands and brothers, friends, comrades, and strangers.

New York Radical Feminists had decided to convene the speakout when women started telling their painful stories in consciousness-raising groups. Now, in the sanctuary, women were publicly “speaking bitterness,” as the Maoists used to call their collective ritual of class grievance. The writer Alix Kates Shulman later told Judith: “We were expressing outrage, the outness of rage.”

Women had a lot to be bitter and enraged about. Police routinely ignored, ridiculed, or sometimes brutalized rape victims. Hospitals triaged them to the bottom of the queue, to be treated after the “real” emergencies. To be believed, a woman had to show the bruises of physical coercion and resistance, even though the rapist may have wielded a weapon or threatened to mutilate or kill her if she refused him. The prosecutor had to produce eyewitness testimony to a crime almost always committed out of sight. The defense attorney could bring up the victim’s sexual history at trial to insinuate that she asked for it. In other words, a rape victim had to prove her own innocence before the rapist could be found guilty. Entire categories of sexual assault were invisible. No statute recognized marital rape; sex on demand was a husband’s prerogative and a wife’s duty. No one talked about child sexual abuse. There were few indictments, much less convictions, for sexual violence.

The organizers discouraged political rhetoric at the speak-out. But a few days later, they supplied their analysis in a one-page leaflet headlined “Manifesto of Shared Rape.” Rape—like marriage and motherhood, control of women’s labor and property, and domestic violence—was an instrument of patriarchal oppression, “final proof of [men’s] power and [women’s] debasement as a possession, a thing, a chunk of meat,” the leaflet declared. “The act of rape is the logical expression of the essential relationship now existing between men and women. It is a matter to be dealt with in feminist terms for female liberation.” Rape was not a matter of individual pathology but a central truss in the edifice of patriarchy, affecting all women, even if they were never assaulted. Rape was political, said these women, so the response to rape also had to be political.

Feminists organizing around sexual and domestic violence in the early 1970s demanded changes in police, hospital, and courtroom procedures, but few had much confidence in a state that had turned its back on women and children for so long. So within a few years, a network of feminist rape crisis centers and a parallel network of “battered women’s” shelters sprang up across the country. Volunteers offered to accompany survivors to the emergency room or police station and through the courts, without pushing anyone to pursue any of those options. The women or their male friends provided security, not the police. Consciousnessraising sessions were held in the cozy, toy-strewn spaces. The goal was nothing less than transformative—in the words of the 1972 mission statement of the flagship DC Rape Crisis Center, “to abolish rape in our own lifetimes.”

Throughout the sixties these women had seen Republicans—presidential candidate Barry Goldwater, California Governor Ronald Reagan, President Richard Nixon—promote “law and order,” code for police crackdowns on communities of color, students, and protesters enraged by the murders of Black leaders and the slaughter in Vietnam. If white feminists’ objections to this agenda came mostly from a political worldview, many women of color drew on personal experience. “Why bother going to the police?” asked Essie Green Williams, an anti-rape organizer with the National Black Feminist Organization, in an early 1970s interview. “The attitude of the police is that it’s just another Black person who has been hitting on another Black person. You know, ‘Ho-hum, they’re at it again.’ So Black women don’t report rape.”¹

Legal reform was not entirely off the table. Liberal feminists like the National Organization for Women, dissatisfied with but not disaffected from the system, lobbied to repeal sexist laws, wrote model legislation, and met with police and members of the judiciary to educate them about women’s frustrating and traumatizing experiences with the criminal legal system. Eventually, all these people, working both inside and outside the halls of power, won what are now considered basic survivor-supportive tenets of sex crimes law and courtroom procedure, such as the inadmissibility of an accuser’s sexual history, the criminalization of spousal rape, gender-neutral definitions of sexual assault that include nonpenetrative and nonconsensual acts perpetrated on any sex by any other sex, and a system of court-mandated services for victims. By the 1980s, police precincts and district attorneys had special units to respond exclusively to sexual violence.

But anti-violence feminists from the left, especially women of color, were adamantly opposed to outsourcing vengeance to the state. “It must be made clear that rape is not a law-and-order issue,” wrote New York Radical Feminists in 1974. “Women are not demanding castration nor are women demanding capital punishment. We do not want to make rape laws more punitive.”²

Carceral Feminism: Marrying the Violent State

By the 1980s, this militant, DIY anti-state spirit was moderating among the most visible, largely white, anti-violence feminists. The United States had begun to “govern through crime,” as legal scholar Jonathan Simon puts it—that is, to address every social problem, essentially, by criminalizing it. Eventually, these women joined forces with tough-on-crime politicians and right-wing Christians determined to protect their conceptions of female chastity and childhood innocence.

Examining this alliance, in 2007 sociologist Elizabeth Bernstein coined the term “carceral feminism” to denote “the commitment of … feminist activists to a law and order agenda and … a drift from the welfare state to the carceral state as the enforcement apparatus for feminist goals.”³ Bernstein argues that carceral feminism is an expression of neoliberalism: a logic that blames social problems on individuals rather than on larger economic forces and systemic racial, gender, or geographic inequities and privatizes formerly public, tax-funded institutions and services, leading to their underfunding and deterioration. In fact, among the biggest predictors of interpersonal violence is male underemployment—a social, not a personal, deficit, and one that is exacerbated by neoliberal austerity. In the EU, austerity has also been linked to an increase in physical, emotional, and sexual violence against women. At the same time, budget cuts have decimated services for survivors and government programs on which poor women and their families rely.⁴

Leigh Goodmark, a lawyer for women who have suffered interpersonal violence, used to be onboard with the carceral crowd. “The antiviolence movement believed that if we made these problems illegal they would go away,” she said in a speech at the International Restorative Justice Conference in 2018. But they didn’t. The effect of arrest on recidivism, Goodmark noted, is “little to none,”⁵ and incarceration may even make it worse. Legal discrimination against people with criminal records in almost every facet of life—housing, employment, and parenting—destabilizes both individuals and communities. For instance, thanks to poverty and broken social ties, almost 50,000 people each year leave prison and enter homeless shelters or end up on the streets (those with sex-related convictions are barred even from the shelters). And the criminalization of survival tactics and homelessness—arrests for shoplifting or sleeping on the street—land these people back in jail.⁶

The Violence Against Women Act

The landmark achievement of the carceral anti-violence and victims’ rights movements was the Violence Against Women Act of 1994. Finally, its proponents believed, the government would hold the perpetrators of intimate violence accountable. But perhaps VAWA’s pernicious effects should have been anticipated. After all, it was part of Bill Clinton’s bipartisan Violent Crime Control and Law Enforcement Act, which also created sixty new death penalty offenses, eliminated federal funds for in-prison college programs, poured billions into prison construction and police expansion, and required states to establish sex offender registries. At the same time Congress passed the crime bill, Clinton was also dismantling “welfare as we know it,” as he put it. While the crime bill expanded and deepened the prison nation, VAWA married anti-violence feminists to the violent state.

VAWA nods to violence prevention, but it overwhelmingly leans on arrest and prosecution—in other words, criminalization, an option that fails to serve many women. Among the 1994 law’s chief provisions were mandatory arrest in domestic violence situations—including dual arrests if the cops couldn’t figure out who the aggressor was—and “no drop” prosecution, which prohibited the alleged victim from retracting charges. In some jurisdictions, the district attorney began to subpoena women to testify against their partners or jails them until they comply. By 2013, a Queens, New York, prosecutor told Time magazine that less than a quarter of victims cooperated.⁷ Moreover, child protective services sometimes charge mothers with neglect or “failure to supervise” for allowing the children to witness their mother’s abuse.

In 2005, the law was amended to “encourage or mandate arrest,” and in 2018, to delete “mandate.”⁸ But the meaning of “encourage”—which remains in the statute—varies from precinct to precinct, and in fact may differ little from a mandate. In either case, the expectation of arrest has discouraged some women from reporting, since the arrest of either partner—or worse, of both—can lead to the loss of jobs, housing, government assistance, or child custody. To label one partner the perpetrator and the other the victim, furthermore, flattens the complexity of relationships that might be violent and loving, mutually destructive and positively interdependent. Therefore, to force legal action robs women of personal agency that is already compromised, and doing so steps up state control over them and their families. Leigh Goodmark describes the paternalism of this approach: “We infantilize people subjected to abuse because ‘we care about you.’ ”

During its first twenty-plus years, VAWA may have helped a segment of certifiably “good” victims—that is, white, female, cisgender, middle-class, and educated ones. But it did not cleanse the system of its inequities, and arguably, it has worsened them. The criminal legal system views women of color, poor women, single mothers, sex workers, lesbians, transwomen, migrants, people in prison, and other Others with suspicion. Any of these women must prove her legitimacy as a victim—a quixotic effort. And VAWA has not only failed to help; it has hurt many people of color. For instance, by 2000, in Milwaukee County, Wisconsin, people of color comprised 24 percent of the population, but 66 percent of interpersonal violence defendants. Most of the cases were felony violations of criminal stay-away orders.⁹

While it was primarily feminists of color who had sounded the alarm about these state-perpetrated harms in the early 1990s, when VAWA came up for reauthorization in 2013, some of the white feminists who fought for it in those years also began to waver in their zeal. Karen Tronsgard-Scott, executive director of the Vermont Network Against Domestic and Sexual Violence, and a white lesbian from a working-class family, came to the work in 1995, the year after the law’s enactment. “The law was all about building our relationship to the criminal legal system so it could do a good job. That had really good and really terrible consequences,” she explains. The main terrible one: “A whole raft of survivors were left out, because the way that the funding drove the services was toward this relationship. In order to access the services, you had to have the prosecution.”

The structure of VAWA, Tronsgard-Scott says, is upside-down: “Two-thirds of survivors want to have nothing to do with the criminal legal system, for lots of good reasons. But VAWA directs two-thirds of the funding to the criminal legal system and only one-third to victims services. That simultaneously forces the service sector into a container that moves further and further from a grassroots, community-based response and keeps them in a state of continuous scarcity.” This scarcity of resources, she adds, also creates a poverty of vision and impedes work for social, economic, and racial justice. “There’s just enough money to make things work, but not enough money to step back and ask: What are the root causes of violence, how are they related across oppressions, and how are we—the white women’s movement—complicit in perpetuating those causes?”

College Bound: Title IX

The carceral feminist logic that helped propel VAWA bled into other institutions, including colleges and universities. In 2011, under pressure from campus feminists who felt their colleges were not addressing sexual assault vigorously enough, the Department of Education Office for Civil Rights under President Obama issued a “Dear Colleague” letter to higher education administrations. The letter directed its recipients to set up procedures to investigate complaints of sexual misconduct and to discipline wrongdoers, or risk losing federal funds for violating Title IX, which guarantees gender equality in educational opportunity.

Almost as soon as the new procedures were in place, trouble ensued. The accused claimed they were being presumed guilty and denied basic due process. Other critics felt that university officers were not up to the job of investigation and judgment, and that the punishments at their disposal were too lenient; instead, they submitted, accusers should go to the police. Once the Title IX offices started ruling, lawsuits against the colleges piled up from disgruntled parties on both sides.

There was also evidence that this new criminal-educational hybrid enacted the racial and class biases of both systems. Consider, for instance, the assault accusations at Colgate University during the 2012–13 academic year, described by journalist Emily Yoffe in a 2017 article in the Atlantic. According to an Office of Civil Rights investigation, Black students comprised only 4.2 percent of the student body, but they accounted for half of the sexual violation accusations reported to the school, and 40 percent of the students put through the formal disciplinary process.¹⁰

In 2017, President Trump’s secretary of education, Betsy DeVos, released amendments to the Obama directive. The policy changes added due process protections and, unlike the earlier iteration, allowed voluntary resolution without investigation. Groups representing the rights of the accused—some of them allied with the anti-feminist “men’s rights” movement—welcomed the changes. But most anti-violence feminists denounced DeVos’s move as a huge step backward, a tacit condonement of rape, and a betrayal of women who experience sexual violence.¹¹

We think that the restorative and transformative processes are more compatible with the realities of sexual relations than the guilty-or-innocent criminal model, and more likely to achieve real accountability and change a harm-doer’s attitudes and behavior. In fact, an in...

Table of contents

• Cover Page
• Halftitle Page
• Title Page
• Copyright Page
• Contents
• Introduction. One Problem, Two Faces: Sexual Harm and State Violence
• Part I. Feminists Confront Sexual Harm
• Part II. State Violence: The Sex Offense Legal Regime
• Part III. Fractured Resistance
• Part IV. Ten Ways to Confront Sexual Harm, End State Violence, and Transform Our Communities
• Acknowledgments
• Notes
• Index