Jul 18, 2016
The Brock Turner case has reminded us of the bitter truth of the adage that in America it is better to be guilty and rich than to be innocent and poor. In early June, Judge Aaron Persky sentenced Turner, a Stanford student who was convicted on three counts of sexual assault, to six-months in jail and three years of probation. The sentence, shorter than the six years requested by prosecutors, spurred an eruption of public outrage. Anger has poured out at Turner's mother and father for excusing his actions and in particular at Judge Persky. The Turner case exemplifies a problematic pattern in American policymaking. The case, similar to other sensationalized instances of leniency for sexual assault, has animated calls for harsher punishments, mandatory minimums and removing judicial discretion. All of these law-and-order responses, coming particularly from the left, continue a tradition in the United States of channeling efforts to address sexual violence into demands for punishment. Far from being progressive, however, this strategy contributes to the expansion of the carceral state, which is ineffective at reducing crime, incapable of healing victims, and devastating for those caught in its web. A more substantively progressive and feminist strategy for addressing these issues is needed in order to draw the connection between sexual violence and material inequality.
Many claim the legal system failed Turner's victim, who wrote a stirring letter that has galvanized support for sexual assault victims. Major actors, predominantly from the left, have rallied to address the injustice of the case. Over one million people have signed onto petitions to recall Judge Persky sponsored by Change.org, MoveOn.org and the women's rights group UltraViolet. The effort has received widespread support, including from the California Legislative Women's Caucus, who are raising money to support the recall. Subsequently, Democrats in the California legislature, partnering with the Santa Clara District Attorney, have drafted two new laws to establish mandatory minimum sentences for the sexual assault of an unconscious person.
The dominant response to the case has been to call for more punishment as a way to increase the protection and standing of women in the United States. In the flurry of opinion pieces and media coverage of the Turner case a familiar zero-sum frame of debate has developed: punishment for the perpetrator is seen as helpful for women and leniency for the perpetrator is seen as harmful for women. This narrow framework for debate has crowded out any consideration of how we can address sexual violence without reanimating calls for harsh sentences, which are ineffective at improving the equality and safety of women and, moreover, harmful for efforts to roll back mass incarceration.
The one dimensional and broadly applied denigration of the "sexual predator" has contributed to a moral panic. This moral panic follows a familiar script to similar events in the past in which an entire class of offenders are seen as heinous and unforgivable. These past panics have fomented support for policies that expand the carceral system. First theorized by Cesar Lombroso in the late 19th Century, the notion of "natural born criminals" has been reincarnated in a number of instances and has been constitutive to the build up of mass incarceration. When offenders are viewed as untreatable and a serious threat to society it causes a moral panic fueling reactive and punitive policies. During the disastrous drug war in the late 1980s and early 1990s, drug dealers were depicted as social predators, racialized inner-city evil-doers that represented a central threat to public safety. Following on the heels of the drug war panic, the theory of juvenile super predators flooded into mainstream media and fueled harsher sentences for youth offenders. Juvenile super predators were depicted as a growing and unprecedented generation of offenders more brutal than any the nation had ever had to deal with. Sex-offenders, a label applied to a diversity of offenders, are uniformly treated as predators requiring draconian and punitive policies. Many feminist organizations have willingly joined in on the moral panic or have been complicit in pushing for the indefinite incarceration and permanent pariah status of those deemed "sexual predators." Consequently, the fastest growing segment of the U.S. prison population today is those charged with sex offenses. The active participation of organizations on the left and feminist groups in demonizing sexual offenders contributes to expanding the prison system.
Arguments for increasing punishments for sexual offenders are often justified on the grounds of protecting women. For example, Michele Dauber, a Stanford Law professor leading the effort to recall Judge Persky, has said the sentence Turner received tells women they are "on their own" and that it is a dangerous sentence that threatens the safety of women. It is true that there are a number of ways that women are "on their own," but there is very little that increased punishments will do to help. Although such protections would not have prevented Turner's sexual assault, expansion of the welfare state to address persistent gender inequality and the social subjugation of women is a more effective way to improve the treatment of victims and to prevent sexual violence.
When someone experiences sexual assault there are a number of protections that are needed for their healing that punishment does not fulfill. Victims of assault experience physical and psychological consequences that require adequate health care, financial support and paid leave time if they are employed. Maintaining employment and thereby economic security and access to health care is critical to helping someone recover from assault. About half of all sexual assault victims lose their jobs or are forced to quit their jobs after their victimization. Workplace flexibility, providing time off and medical care coverage are all essential ways to support sexual assault victims. We leave women "on their own" every day by not providing for everyone a safe workplace, housing, public transportation and employment with adequate pay and benefits.
"When someone experiences sexual assault there are a number of protections that are needed for their healing that punishment does not fulfill."
Further, while these protections are essential for victims, they are also important preventative measures in the wider fight to reduce sexual assaults beyond campus rapes. Women who lack economic independence, who have precarious and low-wage employment and inadequate housing are the most at-risk to experience sexual violence. Far too many women on college campuses are raped or sexually assaulted. And yet, they are less likely to experience this violence than women who do not attend college. Women in the lowest income bracket are six times more likely to be sexually victimized than those in the highest income bracket.
What these figures tell us is that sexual violence is widespread and affects all women. These statistics also suggest there are certain social and economic conditions that would significantly reduce the rate of violence against women. Fighting for these conditions would be a far more effective means of combating violence against women than increasing punishments for sexual offenders. Greater housing stability, workplace protections, flexibility at work, reliable transportation, child care, medical treatment and reduced stress from financial strain all contribute to combating sexual victimization.
Thinking about violence against women more broadly, about 10 million women and men are physically abused by an intimate partner in the United States every year. While domestic violence is different from campus rape, in the larger battle against sexual violence, addressing economic conditions that lead to women's subjugation and being trapped in abusive situations is a more effective way to protect women than bolstering punishment. Between 2001 and 2012, 11,766 women were killed by their husbands or boyfriends. According to the National Network to End Domestic Violence, personal safety and economic security are inextricably linked for victims of domestic violence. Domestic violence is more than three times more likely to occur when couples are experiencing high levels of financial strain compared to low financial strain. Of all domestic violence victims who need housing, more than half do not receive this help. Only 34% of those injured from intimate partner violence receive medical care.
There is substantial evidence that expanding social provisions helps victims and reduces incidents of sexual violence. Those fighting to end sexual violence, and the victims for which they advocate, would be far better served by channeling their energy into fights to improve life for working class Americans rather than teaming up with law-and-order advocates working to expand the criminal justice system.
In the wider debate over sexual assault, much of the discussion has circled around conversations about rape culture in America. Vice President Joe Biden has been outspoken on the issue and even wrote an open letter in support of the Stanford rape case victim. In the letter Biden excoriates "our culture" and calls for solutions to "change the culture." His letter echoed the ideas behind the "It's On Us" campaign launched by the White House in 2014. The initiative is targeted at reducing campus sexual assaults and includes a list of "12 tips" for "being part of the solution" that are all directed towards individual behaviors, such as, "keep an eye on someone who has had too much to drink." Biden's remarks and the "It's On Us" initiative abdicate a broader and more substantive role of the government in preventing sexual violence. There is much more our government can do than devise a hashtag and celebrity-filled youtube video.
Focusing only on sexism and a vaguely defined culture ignores the material conditions of power, inequality and subjugation that facilitate violence. Sexual assault is not only about male aggression towards women. For example, in the juvenile justice system, the vast majority of sexual assault perpetrators are female and the vast majority of victims are male. In 2012 the Bureau of Justice Statistics reported that of 1,390 youth who were sexually victimized by staff, 89.1% were males reporting sexual activity with female staff (44% of the guards in the facilities surveyed were female). More than half of the victims of sexual assault in the military are men. While addressing sexism is laudable, devoid of material changes that give everyone economic security, housing, health care and transportation, it will not alone solve the problem.
Biden is circling back to his efforts two decades ago to enact the Violence Against Women Act (VAWA), which also garnered support from feminist organizations. While the VAWA did positive things for the effort to stop domestic violence, the legislation ultimately funneled money into punishment and temporary services for abused women rather than an expansion of the welfare state to give women the means to leave abusive situations. The act was also part of President Bill Clinton's 1994 Crime Bill, which expanded the death penalty, three-strikes laws, mandatory minimums, sex offender registries and contributed to the rise of incarceration rates in the United States. The dominant response on the left to the Brock Turner case is to again join up with forces to expand the carceral state.
Ratcheting up punishment for sex offenders is not an effective way to deter perpetrators of sexual violence. Despite the persistent belief that punishment increases public safety and "sends a message," research suggests that increasing already long sentences has no deterrent effect. Additionally, the United States' exceptionally broad sex offender registries, community notification, and residency restrictions have not been found to promote public safety. These harsh punishments may even be counterproductive as they marginalize people so severely it increases the likelihood they might offend again.
The United States is already the toughest country in the world in punishing sex offenders. It imposes longer sentences for sex offenders than any other industrialized democracy. The United States is the only country with residency restriction laws that prevent sex offenders from living in certain areas of cities, relegating a wide swath of offenders to the margins of society. Only six other countries have any sex offender registration laws. In these few countries the registry period is usually short and registries are not public. In contrast, the United States broadly applies lifetime registries (Brock Turner will have to register as a sex offender for the rest of his life) and makes them available to the public. Wide public access to registries has fueled vigilante justice in the United States, a reason the United Kingdom chose to not include community notification in its registry policy rolled out in 2011.
Some argue that the problem is not that the system is not harsh enough but that the law is applied inequitably based on race and class. This is true and an important critique of the criminal justice system, but one that often is misdirected into support for ratcheting up punishment. Racial disparities can always be remedied by increasing punishments for everyone - which seems to be what many are calling for in the wake of the Brock Turner case. This strategy fuels support for more punishment and less leniency in the justice system and does nothing to change disparities.
Calls by liberals in the past to make the criminal justice system fairer along racial lines helped open up political space to pass long mandatory minimum sentences for a wide range of crimes. The result of the demand to throw the book equally at everyone ends up fueling the overall expansion of the carceral state. And it is the poor and people of color who bear the brunt of the negative consequences of an expanded and more punitive criminal justice system. Leveling down instead of leveling up is the most effective way to reduce the disproportionate harm levied at the poor and racial minorities in the criminal justice system. Reducing these harmful effects would mean reducing punishment, which becomes increasingly difficult when the energy of the left has been funneled into calling for greater punishment for sexual offenders.
Former football star Brian Banks, who was wrongfully accused and sentenced to a six-year prison sentence on a rape charge, has been held up as a paradigmatic case of the racially unjust application of the law. However, there is nothing about implementing the mandatory minimums drafted by California Democrats or recalling Judge Perksy that would prevent something like what happened to Banks from happening again. In fact, these actions will, if anything, make a case like Banks' more likely by forcing plea deals and removing judicial discretion. The threat of mandatory minimum sentences coerces defendants into pleading guilty, like Banks, to avoid the risk of a long prison sentence.
"In order to end the horrors of mass incarceration--which victimizes people every day, such as the tragic deaths of two women in California prisons just in the past two months--we have to truly challenge the persistent idea that punishment makes us safer."
Banks has publicly lamented that only those who are privileged are given a consideration of mitigating factors in their cases. The recall of Judge Perksy and the implementation of mandatory minimums is an attack on this very principle - considering mitigating circumstances -- not a support for its expansion. No evidence has arisen that Judge Persky has not shown leniency to similarly situated minority defendants.
The recall strategy erodes due process and attacks judicial independence. A group of more than 70 defense attorneys, many of whom are public defenders, have come out in opposition to the effort to remove Judge Persky. They argue that removing Judge Persky will deter judges from extending mercy and encourage them to issue harsh sentences. They say it will also harm their disadvantaged and minority clients. The Santa Clara Bar Association has also come out in opposition to the recall effort saying that Judge Persky was within his rights to determine the sentence.
In order to "send a message" and promote the cause of recalling Judge Perksy, UltraViolet has erected a billboard in the Bay Area publicizing the recall effort and flew a plane with a recall banner over Stanford's commencement ceremony. The California Legislative Women's Caucus has projected they can raise $200,000 to support the effort to oust Judge Persky. This will send more than one message. In addition to expressing public outrage, it will also send a message to judges to give more severe sentences unless they wish to be removed from the bench.
Removing Judge Persky, will ultimately hurt poor and minority defendants. A major contribution to the rise of incarceration rates in the United States has been the punishment wrought on politicians, judges, and district attorneys who are criticized for being "too soft." Our political and legal system for far too long has rewarded "tough" stances towards criminals to the detriment of the millions of people harmed by the United States' exceptionally punitive criminal justice system.
In order to end the horrors of mass incarceration--which victimizes people every day, such as the tragic deaths of two women in California prisons just in the past two months--we have to truly challenge the persistent idea that punishment makes us safer. Protecting women goes way beyond expressing public outrage at Brock Turner and ousting one judge. We have falsely equated punishment and protection in the United States. Safety means a reliable, good job with workplace representation. It means a place to live. It means public transportation. It means access to health care. It means paid leave time. It means economic independence and equality. Spitting on Brock Turner might feel good but it does not make women safer or more equal.
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