(Illustration: Joanna Andreasson, Source image: Public domain)
The last few years have seen a strong, often bipartisan push for criminal justice reform. But certain categories of criminalized acts—those perceived as primarily harming women and girls—have been nearly immune from that spirit.
"Those most vocal about prison reform are also often the most punitive about gendered offenses, even minor ones," writes Aya Gruber, a law professor at the University of Colorado, in her recent book The Feminist War on Crime (University of California Press). Gruber, a former public defender, worries that "women's criminal law activism [has] not made prosecution and punishment more feminist" but instead has "made feminism more prosecutorial and punitive."
There are generations of precedent for that. From the suffragists who played up xenophobic fears through Clinton-era feminists' zeal for sex offender registries, several waves of feminists have contributed to the carceral state. But that alliance isn't inevitable. Another recent book—The Feminist and the Sex Offender (Verso), by journalist Judith Levine and Northeastern Illinois University professor Erica R. Meiners—suggests that if "one kind of feminism helped get us into this mess," perhaps "a different kind of feminism is key to getting us out." This alternative feminist movement would work with, not against, the movements to stop mass incarceration and to protect sex offenders' rights.
The First Wave of Feminist Crime Warriors
By the late 1800s, major feminist groups—like the Women's Christian Temperance Union (WCTU), which had 10 times as many members as the National Woman Suffrage Association—had moved beyond fighting for equal rights to broader "social purity" campaigns. These often aimed to protect girls and women from ruinous sex, using government force if necessary.
Dance halls were one target, being seen as a root of prostitution and seduction. (One 1912 book was titled From Dance Hall to White Slavery.) "Women's groups championed robust enforcement of the tort of seduction, where a woman, or rather her male family members, could pursue monetary damages against men who falsely promised nuptials to procure sex," writes Gruber. Many first-wave feminists "advocated for the criminal regulation of drunkenness and lust more generally." Progressive Era feminists also embraced the idea that "vulnerable women…required state management for their own good." They often justified this by pointing to sex trafficking, as "the narrative of the seducer who cajoled women into consenting to their own ruin had given way to the narrative of the slaver who captured unsuspecting girls and procured sex through punishment, not persuasion," writes Gruber. None of this was great for girls or women—particularly not if they were women of color or immigrants or if they fell outside conventional bounds of femininity or sexual propriety. But it was good for officials who wanted to tighten U.S. borders and nationalize law enforcement. It helped usher in the first federal immigration restriction, the Page Act of 1875, which banned women from East Asia from coming here "for the purposes of prostitution." Later, it helped give us the 18th Amendment, banning alcohol. And it gave us the Mann Act of 1910, which criminalized bringing a woman across state lines for "prostitution or debauchery, or for any other immoral purpose."
The law—popularly known then as the "White-Slave Traffic Act"—became a pretext for the federal authorities to monitor transportation and for cops to harass black people, immigrants, interracial couples, LGBT travelers, women dressed immodestly, and ladies whose families complained about them leaving home. "It was women who bore the primary brunt of criminal law management of commercial sex," Gruber reports. In the 1915 case U.S. v. Holte, the Supreme Court ruled that women could be charged for participating in their own interstate transportation.
First-wave feminists also succeeded in sharply raising the age of sexual consent. In 1885, most states followed English law and set the age at 10 years old; by 1920 all but one placed it at 16, 17, or 18. That may seem like an unambiguous win. But in practice, Gruber points out, the law was enforced in a way that "ended up largely punishing girls, who were locked up [by the state] to prevent men from having sex with them." One 1916 study found 51 percent of girls charged in Chicago's juvenile court were institutionalized, compared to just 21 percent of boys.
How Boomer Feminists Learned To Love the State
By the 1960s, a new feminist consciousness was being forged in the civil rights and antiwar movements. Initially, this second wave resembled the "different kind of feminism" that Levine and Meiners call for: It opposed authorities of all sorts, an orientation that held true during its early forays into fighting sexual assault and domestic abuse.
"The nascent battered women's movement was radical and antiauthoritarian at its core," Gruber reports. It was more likely to offer free self-defense classes than to call for new criminal sanctions. But "as the battered women's and antirape movements grew, different feminists with different commitments vied for control of the narrative and agenda….Some feminists allied with state authorities, and indeed, some were state authorities."
Groups like the National Organization for Women and other avatars of mainstream mid-century feminism "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 legal system," write Levine and Meiners. "But anti-violence feminists from the left, especially women of color, were adamantly opposed to outsourcing vengeance to the state." These feminists "learned from experience that prisons do not end violence, but instead perpetrate and perpetuate it, while destroying individual lives, families, and communities."
Domestic violence intensely divided this era's feminists. For the (overwhelmingly white) feminist mainstream—the kind that ran formal advocacy groups and got quoted in the press—the root of domestic violence was cultural, not material. Men abused women because of male entitlement and sexism. Victims who didn't leave were either paralyzed by fear or suffering from false consciousness. "Legal feminists transformed the general claim that patriarchy causes battering to the specific claim that patriarchal criminal law is the cause of battering," notes Gruber. "They reduced [domestic violence] to the phenomenon of violent sexist men emboldened by weak law enforcement."
The cure, they argued, was to toughen up criminal laws and take away police discretion. This led to policies like mandatory arrest in domestic violence cases where police have probable cause (even if a victim does not want the arrest) and no-drop prosecution (in which domestic assault is prosecuted regard-less of a victim's cooperation, even if it requires punishing the victim to make her participate). Decades later, the evidence shows that these policies often sent battered women to jail and sometimes helped escalate abuse—perhaps backing up arguments that life stressors can trigger more domestic violence. In a series of mid-'90s studies, "arrest often produced an immediate protective effect but increased violence over time," Gruber says. Arrest was most likely to backfire among unmarried, unemployed men those "in districts with larger percentages of black suspects." Arrest and jail may serve as short-term deterrents, but they don't fix underlying problems and do produce new ones.
Nonetheless, "throughout the 1980s and '90s, powerful feminist groups identified lax policing of abusers and rapists as the gender justice issue," Gruber observes. "By the close of the millennium, the stalwart suit-wearing SVU prosecutor who throws the book at rapists had replaced the bra-burner as the symbol of women's empowerment."
This carceral turn in feminism aligned with the general zeitgeist in favor of more policing and tougher punishments. Feminist factions pushing harsher penalties and weaker due-process protections were embraced by people in power—especially Democrats, who saw violence against women as a social justice–friendly way to flex their tough-on-crime bona fides. Anti-carceral feminists and others pushing more holistic solutions grew more and more marginalized.
By the time Bill Clinton was in the White House, policies like sex offender registries and mandatory domestic violence arrests were dogma. Those who questioned these ideas—or rising orthodoxies around the prevalence of campus rape—were ostracized. Meanwhile, a bipartisan alliance in Congress ushered through the Violence Against Women Act (VAWA), a bill supported by both law enforcement and women's groups.
Democrats still brag about VAWA, which was first introduced by then–Sen. Joe Biden (D–Del.) in 1990 and passed as part of the Violent Crime Control and Law Enforcement Act of 1994. But it was just as pro-incarceration as other aspects of the 1994 crime bill. "VAWA married anti-violence feminists to the violent state," Levine and Meiners write. It "overwhelmingly leans on arrest and prosecution—in other words, criminalization, an option that fails to serve many women."
The 1994 law also included the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, which among other things required states to participate in a national sex offender registry. The registries now include around 900,000 names, listed for an ever-expanding array of crimes. "In many states and in the federal system, sentences for sex-related offenses exceed those for aggravated assault, arson, or even homicide," point out Meiners and Levine. Yet "twenty-five years of experience and a mountain of research show that no part" of sex offender registrations, notifications, and restrictions "gives the public any reason to feel either safer or less safe." Still, for decades, state and federal lawmakers have been passing ever stricter and more detailed versions, "craft[ing] new statutes from a seemingly inexhaustible store of ideas for policing sex and 'sex offenders.'" Feminists have cheered them on. Sometimes, they've been intimately involved in crafting the rules.
Rape Laws and Registries
Second-wave feminists were able to transform many rules surrounding rape and sexual assault investigations and prosecutions. Some of these changes were positive. But overall, they did less to empower women than they did to empower police and prosecutors. As with the fight against domestic violence, a radical, grassroots movement of women helping women evolved into a fight for stricter criminal laws and weaker due process, with a side order of attacking pornography and prostitution.
"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," writes Gruber. "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….With the advent of the modern women's movement, that all changed."
There were divisions within the women's liberation movement, of course. "Dominance feminists," such as Catharine A. MacKinnon, "hoped to craft a legal regime reflecting that sex was presumptively coerced except under the narrowest conditions of equality, mutuality, and authentic feminine desire," writes Gruber. Meanwhile, "liberal feminists favored a framework in which sex was lawful so long as there was 'consent,'" replacing previous standards where rape required the use of force. (Nonconsensual but nonviolent sex had been criminalized under a different category.) Activists went on to champion "special evidentiary rules" and to push "the narrative of a sex-averse, frozen-in-flight, and easily traumatized victim to explain away victims' testimonial inconsistencies, their consensual behavior, and why they didn't say 'no.'"
One such evidentiary reform was known as a "rape shield law." This reform said that in sexual assault trials, victims' past sexual experiences and conduct were off-limits, as was bringing up their clothing, relationship status, and other things deemed prejudicial. On the face of it, this sounded good. Feminists championed these laws as ways to mitigate cultural bias against female promiscuity and to counter outmoded ideas about victims "asking for it," as well as to spare victims the embarrassment or trauma of having their sex lives made public. Biden again jumped on board. Without rape shield laws, the future president argued, a trial could be as "degrading as the rape itself."
But "prior to the rape shield revolution, evidence laws already required judges to exclude irrelevant and unduly prejudicial sexual conduct evidence," argues Gruber. Rape shield laws just took away their discretion. Meanwhile, in pushing for these changes, "it was feminists and their allies who publicized through spectacular narratives that rape trials necessarily involve public humiliations, or 'second rapes,' that produce life-long trauma." In doing so they "took criminal prosecution as a given" and perpetrated sexist myths about women's fragility.
Feminists also pushed to exclude defendantsin sexual assault cases from protections afforded defendants accused of other crimes. In "the midst of '90s predator panic, an alliance of women's rights activists, concerned citizens, and tough-on-crime politicians pushed through a novel federal evidentiary rule, Rule 413," explains Gruber. This exempted "sexual assault defendants from the general rule that prior bad acts are not admissible to prove current behavior." Meanwhile, they pushed handy but unscientific explanations of trauma to wave away any inconsistencies in victim stories or peculiarities in their behavior. "'Rape trauma syndrome' reflected popular views that women were 'ruined' by rape (and even imperfect sex)," notes Gruber, and thus "the trauma narrative resonated with judges and juries, and trauma became a prosecutorial trump."
The rape law reform efforts were part of a broader trend to exclude those deemed sex offenders from normal legal protections while simultaneously broadening the definition of sex offenses—and of child.
"Since the late 1980s, the age of a 'child' in federal statute was raised first to sixteen and then eighteen," note Meiners and Levine. And "as the age of consent has risen, most carceral feminists have been content to let the lines blur between the small, prepubescent people we used to call children and the fifteen- and sixteen-year-olds that much of the world regards as mature enough to make their own sexual decisions."
The number of sex offenders behind bars took off, often ensnaring children themselves. Around 200,000 people are on sex offender registries for crimes committed as minors. Reason has documented numerous cases of teenagers charged with child-porn offenses for sexting among themselves.
It's all part of what Levine and Meiners call "the sex offense legal regime." This includes "draconian prison sentences for a growing list of offenses; civil commitment (indefinite post-prison preventative detention in prison-like psychiatric institutions); and the sex offender registry, which is fortified by hundreds of local, state, and federal restrictions on where, when, and with whom registrants may live, work, play, travel, or just be."
Bad Stats Drive Bad Policies
Such changes were helped along by flawed research, which tends to perpetuate itself in the press and the legislatures even after scholars correct it.
Take the oft-made claim that recidivism is much higher for sex offenders than for other kinds of criminals. "Research has firmly discredited this claim—it is in fact the opposite of the truth—yet it has proven almost indestructible, the perfect factoid upon which to fix unnamable fears," write Levine and Meiners. In 2002, for instance, Supreme Court Justice Anthony Kennedy wrote in a decision (for McKune v. Lile) that the recidivism rate for "untreated [sex] offenders" may be as high as 80 percent. The actual number is debatable, but it is clearly far lower. So how did Kennedy arrive at that figure? He got it from a U.S. Department of Justice guide, which in turn cited a 1986 Psychology Today article that included no supporting evidence or documentation for the claim. And the article wasn't even about national recidivism statistics—it was about a single prison counseling program in Oregon.
"The false 'facts' stated in the opinion have since been relied upon repeatedly by other courts in their own constitutional decisions, thus infecting an entire field of law as well as policy making by legislative bodies," write Ira Mark Ellman and Tara Ellman in Constitutional Commentary, the University of Minnesota's law journal. Notably, they are frequently offered to justify "the increasingly harsh set of post-release collateral consequences imposed on" sex offenders.
Similarly, the case for mandatory arrest in domestic violence situations rested largely on a small study that supposedly showed that arrest deterred future abuse. Those results received a lot of media attention and were cited on statehouse floors. The study's author, Lawrence W. Sherman, went on to conduct five more studies on the issue, following thousands of domestic abuse cases. These times, his research suggested just the opposite: Arrests often escalated domestic violence. With a wider sample, Sherman concluded in 1992, it became clear that mandatory arrests "make as much sense as fighting fire with gasoline." Yet well "into the 1990s," Gruber writes, "states and localities adopted proarrest policies as if the replication studies did not exist."
Today, nonsense statistics about sex trafficking and campus rape have likewise proved stubbornly indifferent to debunking, giving rise to revived panics about forced prostitution and ruinous sex.
The rhetoric harkens back to Progressive Era narratives about shadowy male traffickers forcing innocent women and girls into prostitution. These "new abolitionists, like their old counterparts, regularly depicted sex slavery through lurid and racialized narratives and then simply applied the label to all prostitution," writes Gruber. They tell eroticized, sensationalistic tales about unambiguous victims, then mix these with statistics about sex work more broadly to create a distorted picture of the problem's scope.
Lately, this has led to laws like the Fight Online Sex Trafficking Act (FOSTA), the 2018 legislation that made hosting online sex ads a federal crime, and the Justice for Victims of Trafficking Act, the 2015 law that broadened the type of activities that count as "sex trafficking," increased the penalties for these activities, lowered evidentiary standards, and otherwise made it harder for the accused to mount a defense.
Time to Choose
Levine and Meiners—who "believe that the sex offense legal regime must be abolished, along with the entire prison industrial complex"—want feminists to find new allies: not police and prosecutors, but criminal justice reformers, sex work activists, and others with a jaundiced view of state power. They implore feminists to remember that "interpersonal violence and the violence inflicted by the state are not opposing actors in a moral or political war" but "a team, the former the bad cop, the latter the good. They speak in unison: Might makes right."
As the long feminist war on crime has shown, this alliance does more than just send a mixed message. Trying to achieve gender equality, fix interpersonal relationships, change sexual mores, and solve social ills through state force winds up creating systems that get used against those it claims to benefit, backfiring broadly against girls and women or benefiting the most privileged while making life worse for already disadvantaged or stigmatized groups. In short, crime panic has been bad for women's rights, even when the people panicking are themselves feminists.
Gruber, too, calls on current and future feminists to resist the pull of carceral action. Today's activists must "direct feminism away from punishment" and "adopt an unconditional stance against criminalization, no matter the issue." She also asks feminists to stop crafting solutions based on some mythical "everywoman," a tendency that produces carceral policies that can protect more privileged groups while harming others.
But can it be done?
"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," writes Gruber. "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 interest in their continued survival. Politicians are certainly not apologizing for VAWA as Clinton did for the 1994 Crime Bill that enacted it."
On the contrary, speakers at the 2020 Democratic National Convention repeatedly crowed about Biden's role in passing VAWA.
"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 relationships, laws against stealth condom removal," Gruber writes. "Emboldened by a modern antitrafficking 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."
So what choice will feminists make? Will we continue on a trajectory that has filled prisons, weakened due process, established biased legal standards, and given cops new reasons to get involved in people's lives? Or will we internalize this history, listen to the women and girls victimized by these laws, and stop looking to the police for social justice?