By Maia Hibbett
Original article found here.
A NEW YORK CITY MARCH descended upon a jail in mid-June, with protesters pumping fists and waving signs at the facility’s imposing brown exterior. “We love you; we miss you; we will get justice for you,” they chanted, as cellphone videos recorded the moment outside the Manhattan Detention Complex. The calls boomed toward the building’s stacked concrete rectangles, aiming for narrow slits between these layers—the jail’s excuse for windows.
Throughout the spring, other jailhouse windows carried messages from the inside: signs slapped against the glass pleading “Help us” and “We’re dying.” As Covid-19 outbreaks bloomed in detention centers across the United States, a few high-profile cases prompted mainstream news coverage of health risks among the nation’s enormous incarcerated population. “In the corporate media,” said Amy Goodman on a Democracy Now! broadcast in March, “the only reason they’re talking about jails is because Harvey Weinstein, apparently, at Wende prison, has reportedly tested positive for Covid-19.”
In the Weinstein case, some may have been tempted to cheer for the virus. Earlier that month, when the producer was booked into Rikers Island awaiting sentencing, onlookers wondered gleefully if he would be subjected to the inhumane conditions for which the jail has become notorious. In February, when his criminal trial became a top-rated courtroom drama, viewers asked why he had shown up with a walker, speculating that it was a play for the jury’s pity. And when he became a reported victim of the pandemic, the public did not extend to him even the shallow and fleeting concern showed by some for his incarcerated peers. The popular question was not whether other prisoners would have access to the testing and treatment that allowed Weinstein to recover—it was assumed and accepted that they would not—but rather why Weinstein had gotten it at all.
The public contempt for a formerly powerful mogul and the upwelling of concern for the mostly powerless people inside the Manhattan jail are not two discrete sentiments isolated by their contexts, but two related ones set on a collision course. As the movement for Black lives swept the country with renewed calls to abolish prisons and end the criminal-legal system’s cruelty, the #MeToo movement was pushing for a different vision of justice—one that celebrates harsh penalties and sees “light” sentences as the result of a systemic failure to take women’s safety seriously.
The United States has a long history of treating those classed as criminals subhumanly, and even as that legacy comes under scrutiny, no criminal remains more widely reviled than the sex offender. In the media and popular imagination, “Weinstein was ‘deformed,’ ‘abnormal,’ ‘intersex,’ with no balls but a vagina, ‘disgusting,’ ‘scarred,’ ‘grunting,’ with bumpy skin, lumpy semen, ‘fat,’ ‘hairy,’ stinking of ‘shit, sorry poop,’ a beast, unmanned, subhuman,” writes JoAnn Wypijewski in her recent collection of essays What We Don’t Talk About When We Talk About #MeToo. Such monstrosity accepted in the court of public opinion helps validate harsh treatment in criminal court. Witness Michigan judge Rosemarie Aquilina, who in January 2018 sentenced the disgraced USA Gymnastics doctor Larry Nassar. “Our Constitution does not allow for cruel and unusual punishment. If it did, I have to say, I might allow what he did to all of these beautiful souls—these young women in their childhood—I would allow someone or many people to do to him what he did to others.” Instead, she followed the letter of the law and merely imposed a 175-year sentence, pronouncing, “I just signed your death warrant.”
“Was Aquilina giving other people in prison the nod to rape Nassar? Or kill him?” ask Judith Levine and Erica R. Meiners in their new book The Feminist and the Sex Offender. It sure sounds that way. Along with the rise of the #MeToo movement that brought Nassar and Weinstein’s crimes to light came a popular and pre-existing assumption: these wrathful moments are supposed to make victims feel better because in the United States, vengeance and justice are synonymous. As the author Abigail Pesta wrote for CNN Opinion after Nassar’s sentencing, “Did the judge get heated? Yes. Should she have done so? Yes. Her response was not a demonstration of bias but of humanity. It was justified.”
Yet several recent works are sounding an alarm against what sociologist Elizabeth Bernstein described over a decade ago as “carceral feminism”—and insisting that the convicted and accused are part of humanity too. In her book The Feminist War on Crime, Aya Gruber notes that in her years working as a public defender, she became “increasingly concerned that women’s criminal law activism had not made prosecution and punishment more feminist. It had made feminism more prosecutorial and punitive.” As Gruber, Wypijewski, and Levine and Meiners show, this punitive turn did not arise with the explosion of #MeToo in 2017. Their books examine in depth a dynamic that Black feminists and prison abolitionists like Angela Davis and Beth Richie have been pointing out for decades: mainstream feminism assumes that women’s safety can only be secured through the tools of state violence and oppression, thus furthering racial and class disparities as unseemly byproducts of the feminist movement. You can call it “carceral feminism,” but to many feminists—white ones in particular—it’s just the way this –ism works.
Now, as the growing movement against police brutality and a vast prison-industrial complex compels an increasingly large segment of the public to view everyone—even those found guilty of serious crimes—as human beings deserving a shot at redemption, feminism has a chance to get on board. The work of Gruber, Wypijewski, Levine and Meiners, among many others, not only diagnoses what’s wrong with mainstream, carceral feminism but also helps us plot a way forward.
In The Feminist War on Crime, Gruber traces the collaboration between the mainstream feminist movement and the white power structure’s periodic crackdowns on actions deemed criminal. Starting with the first-wave feminist strains of the late nineteenth and early twentieth centuries, Gruber recasts the temperance movement as part of a “feminist” anti-rape project that used the criminalization of sex to help enforce a racial and class hierarchy, while also stoking anti-immigrant panic.
“One of the great barriers to racial and class solidarity within antirape activism was the growing concern with ‘white slavery’ and the ‘new abolition’ movement,” Gruber writes. This “new abolition” surged around the turn of the century and had little to do with the recently triumphant campaign to abolish slavery. But it borrowed the language—comparing prostitution of young, white women to the enslavement of Black Americans and captured African people. “American feminists were [also] receptive to the analogy, converting their moral condemnation for now-abolished chattel slavery to a moral reprehension of prostitution,” Gruber explains. This misguided attempt to express solidarity through linguistic appropriation has persisted from the late 1800s to the present: today, many feminists who seek to strip sex workers of their rights and criminalize their livelihoods still call themselves “abolitionists.”
But Gruber, who advocates that “feminism could come back from the abyss” if a new generation of “millennial feminists [should] take the policing and prison abolition movement seriously,” is careful to distinguish between anti-prostitution “abolitionism” and the abolition of the current criminal-legal system. The latter requires “understanding that policing, prosecution, and punishment are largely fixed institutions, with embedded authoritarian and racialized features.” The former embeds those features in the feminist movement. While “the primary racial imagery of sexual slavery involved white girls entrapped by or sold to foreign men, low-class criminals, or ethnic minorities”—thus legitimizing greater surveillance and persecution of those groups—the prostitution frenzy also erected borders and sanctioned violence between groups of women. “In the late 1800s, as the Chinese population in California neared 25 percent and panic around a ‘Yellow Peril’ was in full swing, Asians’ perverse sexuality figured prominently in an anti-immigrant rhetoric,” Gruber writes. This “yellow slavery” narrative was a precursor to the “white slavery” one, weaponized not just to “save” alleged “sex slaves” but to drive them out of the country.
The popular question was not whether other prisoners would have access to the testing and treatment that allowed Weinstein to recover—it was assumed and accepted that they would not—but rather why Weinstein had gotten it at all.
The “yellow slavery” panic delivered the 1875 Page Act, “the first federal law to control immigration,” with the explicit goal to “send the brazen harlot who openly flaunts her wickedness in the faces of our wives and daughters back to her native country.” The act laid the ground for the infamous 1882 Chinese Exclusion Act and the 1910 “White Slave Traffic Act,” or Mann Act. (Still in effect, the latter name is now preferred.)
Gruber establishes this anti-prostitution crusade as foundational to the collaboration between mainstream feminism and the punitive state in her first chapter, “The Opening Battle.” She labels each chapter with a combat-themed metaphor, and in the last, “Endless War?” discusses the media frenzy over sex trafficking that resulted when white billionaire Robert Kraft, owner of the New England Patriots, visited the Florida spa and hand job parlor Orchids of Asia. While the media salivated over the Kraft scandal, “the Asian female Orchids employees were hit with an array of felony and misdemeanor charges related to prostitution and profiteering,” facing up to fifteen years in prison for the felonies alone.
But fundamental as it is, anti-prostitution feminism is perhaps easier to condemn than other forms of carceral feminism. Since the passage of the infamous 2018 sex work crackdown bill FOSTA-SESTA, it has become more acceptable—on the left, at least—to listen to sex workers who say that authoritarian measures do not help them. “Sex worker organizations say that FOSTA-SESTA robs them of independence, income, and safety by driving their work underground and onto the street,” Levine and Meiners note. Dealing with domestic violence and sexual assault, by contrast, is trickier because the severity of the harm done to victims has deterred a similar interrogation of longstanding assumptions about crime.
In a chapter called “The Enemy: From ‘the Man,’ to Bad Men,” Gruber exposes how the once-promising anti-authoritarian feminism of the 1960s tried and failed to radicalize the feminist movement, succumbing to the Nixon-era capitalist mindset that persists today. She illuminates a little-known feminist strain called “shelter feminism,” which linked gender-based and economic vulnerabilities by recognizing that the need for safe housing was at the core of women’s security. “One radical ideology that deeply influenced the shelter movement was an intense aversion to the racist, sexist, Vietnam War–supporting state, aka ‘the Man,’” Gruber notes. “Shelter feminists saw [domestic violence] as a phenomenon at the intersection of many interlocking social inequalities that occupied the Left’s protest agenda.”
This basic grasp of what Kimberlé Crenshaw later defined as “intersectionality” helped the shelter movement avoid the trappings of mainstream white feminism, which has consistently failed to serve marginalized women by assuming the state is on the side of all those who seek its help. “Women with little social or economic power—poor women, women of color, queer and trans women, sex workers, single mothers . . . often decline to report abuse,” Levine and Meiners write. “Having already suffered the criminalization of their communities, these women may not relish sending more men to prison.”
Albeit radical and anti-authoritarian, the shelter movement was still dominated by white women, as were the competing factions Gruber identifies as anti-patriarchy feminists, “who regarded sexist marriage norms and male economic privilege as the driving force behind battering,” and legal feminists, “who pursued their antibattering agenda through law reform and litigation.” The racial blindspots of domestic violence activists meant the dangers of criminalization went unchallenged and “proarrest” legal feminists eventually won out. In 1989, Crenshaw cautioned that “sexist expectations of chastity and racist assumptions of sexual promiscuity combined to create a distinct set of issues confronting Black women,” and that courts compounded these issues. “Some fear that antirape agendas may undermine antiracist objectives,” she wrote.
“The legal feminist position that stronger criminal punishment is the remedy for harmful behaviors categorized as ‘crimes’ is ingrained in contemporary thinking,” Gruber notes, “as if feminists have all become cynical realists who regard the original progressive designs of socialist feminists as utopian pipe dreams, not worth talking about.”
Today, that cynical acceptance of capitalist conformity faces a challenge with new fervor. While the failure to embrace the radical politics of the civil rights and anti-war movements allowed legal feminism to win, the current push for justice—described by some as the largest social movement in United States history—is Black-led and largely trained on dismantling the criminal-legal system. Moreover, the past failings of the feminist movement can be read as a powerful argument for abolishing police and prisons. In her discussion of mandatory arrest policies—which dictate in twenty-two states that cops responding to a domestic violence call must make an arrest—Gruber examines a 1982 Commission on Civil Rights (CCR) report in which “officers lamented that the complicated nature of [domestic violence] prevented them from capturing the criminal in simple superhero style—and from receiving the gratitude of the rescued damsel.” At a CCR hearing, one expert explained: “[Police] long for the simple solution that arrest offers . . . which they see as getting them out of the ‘social work business.’” In a June interview on The Daily, Vince Champion, an Atlanta-based police union director, echoed this sentiment while defending one of his members for shooting Rayshard Brooks three times in the back: “A lot of officers, we’re social workers. We’re marriage counselors. We’re doctors sometimes. We’re more than actually what we were trained to be. . . . And then, when we slip up, we’re the enemy.”
Pressing the Panic Button
While cops loudly bemoan being demonized by widespread protests against their brutality, a large subset of the population quietly experiences true demonization: sex offenders. An elaborate system of public ostracizing exists in the form of state and national sex offender registries.
“The registry is designed to produce shame, and shame feeds a culture of sexual and gender violence and inhibits its survivors from speaking up,” Levine and Meiners argue in The Feminist and the Sex Offender. Theirs is an instructive text that advocates anti-carceral feminism by dissecting the registry, one powerful weapon in the feminist war on crime. “Some 860,000 people are Registered Sex Offenders, social exiles for whom daily life is absorbed by punishment and shame,” Wypijewski writes in the titular essay of What We Don’t Talk About When We Talk About #MeToo. “In sex cases, any sentence is often, effectively, a life sentence.”
The #MeToo movement was pushing for a different vision of justice—one that celebrates harsh penalties and sees “light” sentences as the result of a systemic failure to take women’s safety seriously.
This “life sentence” was enshrined in the 2006 Adam Walsh Child Protection and Safety Act, named for a child murdered in 1981 whose bereaved yet opportunistic father, John Walsh, took his fight against sex offenders to prime time. (Before successfully lobbying Congress to pass the 2006 law, Walsh got famous hosting the 1990s hit America’s Most Wanted.) The trajectory from Walsh’s celebrity rise to the codification of his vengeance in federal law is almost too perfect. As with the anti-immigrant prostitution crusade, discussions of sexual deviancy devolve into moral panic when they reach the public square. Wypijewski draws this line repeatedly in her essays critical of, and often contemporary with, media frenzies, including those over the AIDS crisis, the Catholic priest scandal, child porn, date rape, Brett Kavanaugh, and Woody Allen.
“There is a creepiness to the way so many who write about this case luxuriate in suffering,” she reflects on the ultimately unproven allegations that Woody Allen molested his daughter Dylan Farrow. At the height of the priest scandal, the press “fashioned itself as part policeman, part lurid carnival barker,” and in the wake of child porn panic, “the law invites us . . . to think like a pedophile.” After a flurried legislative crackdown on sexting, twenty-three states had laws to charge kids as child pornographers for exchanging images of their own bodies as of 2019, saddling many of them with a spot on the registry, which—thanks to the Walsh Act—they keep for life.
The registry and the media panics that surround it share a common method: a unilateral narrative approach that blurs a complex range of sex offenses into a mass of horror and disgust. As a result, cries for justice usually emerge from a public hungry for even harsher punishments. To sate them, state politicians have increased the severity of the Walsh Act’s punitive measures. “Initially, federal guidelines required that each registrant provide local law enforcement with their name, address, photograph, and fingerprints. Today, many states take DNA samples, stamp ‘Sexual Predator’ on driver’s licenses, and/or mandate disclosure of logins and passwords to social media sites, if the registered individual is even allowed on the Internet,” Levine and Meiners note. Like most forms of criminal system overreach, this surveillance machine hardens the racist effects of policing: in Illinois, for example, Black men are more than twice as likely as men in general to end up on the registry.
For Levine and Meiners, this disparity begs a troubling question: “Why is the registrants’ rights movement so white?” Examining the movement to free registered sex offenders from this punitive system, they identify a problem similar to the one Gruber finds with mainstream feminism: a failure to think across lines of class and race, and to understand the racist aims of the criminal justice system. As a result, different strands of different justice movements end up siloed in competing camps.
We Keep Us Safe
If the public believes that all sex crimes are worthy of panic, and all sex criminals are irredeemable, the only way the system can increase racial parity is by enhancing punishment across the board. “Brock Turner, the [white] former Stanford swimmer whose sentence of probation for sexual assault after a drunken party is regularly called a ‘slap on the wrist,’ is on the registry for life,” Wypijewski reminds us. And indeed, Gruber points out that after the Turner sentencing backlash, the California state legislature closed the infamous “Turner loophole” by extending the reach of mandatory minimum sentences and expanding the state’s definition of rape. Missing from the media narrative was the fact that the officer who recommended Turner’s probation “considered the wishes of the victim, who told her, ‘I want him to know it hurt me, but . . . he doesn’t need to be behind bars.’”
These wishes resonate with many of us who have reasons to participate in the #MeToo movement. Speaking up has been the movement’s driving force, but how many of us refrain because of what the public and the prosecutors expect us to do next? It has been widely reported that roughly 90 percent of sexual assault victims know their assailants, and many of us don’t want our former friends, partners, acquaintances, or even the rare stranger to be incarcerated or prevented from living their lives. As Levine and Meiners show, a culture of unrelenting condemnation breeds shame on all sides. The first time I was sexually assaulted, the perpetrator was a close, long-time friend, and I hid the truth from the people who knew us both for years. As I realized that the event was appallingly common—escalating an at-first consensual encounter to a standard she-said-no-he-said-yes instance of rape—I still missed my friend, and I didn’t want to turn him into a monster in the eyes of the world or a criminal in the eyes of the law. When #MeToo brought its reckoning, I turned away from the coverage, unable to stomach the manufactured catharsis.
I can’t speak for those who have endured the worst and most violent assaults, nor can I equate my assailant to the likes of Harvey Weinstein, who leveraged his immense power and wealth to abuse, assault, and exploit dozens of victims over multiple decades. But the bloodthirsty, inhumane treatment of the worst examples encourages us to view all perpetrators as monstrous, all victims as powerless, and all occurrences of a painfully nuanced phenomenon as a monolith. Different survivors require different tools for healing, and some see more hope in movements against the barbaric justice system than in mainstream feminism’s assumption that it can deliver retribution. And most perpetrators need something other than prison and public shaming: to break existing cycles of violence and learn to treat their future sexual partners better.
Learning lies at the heart of “restorative justice,” in which a victim might meet with an assailant to explain the harm that was done and request specific commitments for repair. The goal is for the assailant to understand, to begin the work of change, and for both parties to heal. When this healing and accountability process expands beyond the victim/attacker binary, it becomes transformative justice, an approach focused on community accountability and access to material resources as deterrents of violence.
“Just like the work to challenge white supremacy [should] not have to be done by every person of color or every POC organization,” Meiners writes, it should not necessarily fall on individual sexual assault victims to confront their assailants. For many, the confrontation may be too traumatizing to be effective. “Part of the framework of community accountability or [transformative justice] processes is to acknowledge that a wider group of people are involved in individual acts of harm.”
This aim is antithetical to the individualist, capitalist mindset that predominates in the United States. As Gruber shows in her chapter “The Enemy,” the focus on individual responsibility for gender-based violence has been intentionally ingrained—and many of the people who institutionalized the current capitalist-criminalization approach remain in power today. “The landmark achievement of the carceral anti-violence and victims’ rights movements was the Violence Against Women Act of 1994,” Levine and Meiners note, referring to a subset of the infamous Clinton Crime Bill that arose from what Gruber identifies as “The Biden-Schumer strategy” to prove Democrats were tough on crime.
Most perpetrators need something other than prison and public shaming: to break existing cycles of violence and learn to treat their future sexual partners better.
“The system is working,” Levine and Meiners write. “Its function is to police and punish. As activists, we must therefore choose: we can try to reform the system to do this job a little more fairly and a little less cruelly; or we can try to dismantle it.”
Like Gruber, Levine and Meiners call for abolition feminism, but where Gruber broke her book into components of war, Levine and Meiners conclude theirs by outlining steps to peace. Their prescriptions include “Abolish the Sex Offender Registry and Civil Commitment,” “Build and Sustain a Robust Welfare State, Not a Carceral State,” and “Practice Restorative and Transformative Justice.” Wypijewski does not make such explicit calls for action, but her anti-authoritarian spirit is obvious. To her, “Nothing says patriarchy like the police state.”
“There is a palpable poverty of intellect, a lack of imagination, and a banality of ideas pervading mainstream politics today,” Keeanga-Yamahtta Taylor recently wrote in The New Yorker. One half of the brainpower behind the “Biden-Schumer strategy” now leads the Democrats in the Senate, and the other is the nominee for 2020’s Lesser of Two Evils. But with Americans increasingly frustrated by the capitalist inequality exacerbated by Covid-19, newly reckoning with the original evils of colonization and slavery, and already disapproving of mass incarceration, people are taking to the streets, toppling statues, and occupying spaces on anti-authoritarian principles. Maybe mainstream feminists will finally catch up.
Already, there are glimpses of feminist justice that don’t rely on police, don’t haul people into court, and don’t equate imprisonment with correction. On a hot Saturday in late June, I sat on the concrete in the early days of an encampment at New York City Hall, listening to a community meeting that addressed allegations of sexual harassment between members. Self-governing is hard, and the problems would not be resolved in a day, but in the moment, spirits were high, numbers were strong, and the crowd was tuned in. The speaker didn’t delve into salacious details or call out specific individuals. Instead, we saw a transformative justice approach: framing respectful, non-coercive behavior as a community responsibility shared by all of us. At the close, the speaker prompted those gathered with a popular chant: “Who keeps us safe?”
“We keep us safe!” the crowd roared back.