In post 19 of 100, I mentioned that “sexual violence” as an idea is something that most men find revolting on a conceptual level, and that only the most extremist advocates of Patriarchal Misogyny will say things like “rape is good.” At the same time, sexual violence is still pervasive in the United States and, while the “why” of that is definitely several of its own posts to make in the future, in this post I want to talk about how much of a failure it has been to look to the criminal justice system and incarceration specifically as the primary social tools to combat sexual violence.
Before I go into that though, I will publicly state, again, that survivors of sexual or domestic violence should use whatever tools and resources they need, and are available to them, to feel as safe as they can in the world they live in. The United States does very little to support survivors of sexual violence in healthy or affirming ways and very few communities are prepared to offer support or resources that will do more good than harm. From a very young age, people in the US are taught to trust the criminal justice system to handle all aspects of personal and public safety, and that leaves very many people with no one else to turn to in response to harm or the threat of harm. It is not any survivor’s fault that getting support after an assault is so difficult or that the institutions that are supposed to be trusted to handle these situations are so bad at it, nor should they every be blamed for doing what they believed they had to to survive.
There are a lot of things that I want to talk about here and I don’t know how to organize them in advance, so I am just going to do another numbered list who’s numbers don’t actually matter and then see where that goes. Why can’t the criminal justice system stop sexual violence?
1. It was never meant to. I have talked previously (in post 4 of 100, where I talk about rape) about how legal definitions of rape vary from state to state in the US, and that the federal definition is overly vague compared to international standards of definitions, like that established by the UN. Looking back even farther in western legal history, “rape” becomes even less useful as a legal term, because, where laws have been recorded about it, they tended to be defined more by legal definitions of property (that established women and children as the property of husbands and fathers) than by anyone’s right to bodily autonomy. If this is an interesting topic to you or new information, one easy to digest source that talks about it is this Mother Jones article. An important point from that article is that in the US, a man in the state of North Carolina could still legally rape his wife until 1993, because of the way the crime of rape was defined. Additionally, laws about sexual violence have almost always been very selectively applied and almost never to legally marginalized groups like slaves, indigenous peoples and nations as they were being colonized or waged war against, and undocumented/recognized immigrants, and incarcerated people. Laws about sexual violence in the US have almost never been about trying to prevent sexual violence, but to define when violent sexual behavior is deemed to be dangerous to social order, and when it is to be ignored/expected.
2. It maybe feels a little ironic (but in a really predictable way), but it is a very prevalent part of popular US culture to assume that sexual violence is a common practice within jails and prisons. The actual statistics about sexual violence in prison is nearly impossible to estimate because it is so rarely reported/confirmable, with the range of estimates as far apart as 1% and 41% of incarcerated people experiencing sexual violence. Very many of the media portrayals of incarceration feature threats and acts of sexual violence within them, and it seems very common for some kind of retaliatory sexual violence to be expected when talking about the most violent and scariest perpetrators of sexual violence who are sent to prison. I think these cultural stereotypes and assumptions are very important when thinking about why sexual violence is still so prevalent in the United States: People will conceptually say “sexual violence is bad,” and I think that most will really mean it when they say it, but they are making that statement about specific types of sexual violence, being perpetrated against specific groups of people in their heads who deserve to be viewed or imagined within the category of “human beings that deserve to be treated with equal rights.” And, for a large block of the US, that is a pretty narrow category when it comes to “willing to take necessary and expensive action to protect those people and their rights.” Another very common trope when talking about the topic of sexual violence with men, in a way that will make it meaningful to them, is talk about how the survivors of this violence could be their sisters/mothers/daughters/etc. This also overlaps back into the historical compartmentalizing women and children as the property of men. I think I am going to have to talk more about that history and its relationship to patriarchal misogyny in a future post, because it is going to keep coming back up over and over again.
3. When sexual violence is defined as a criminal justice issue, and dealt with primarily in the criminal justice system, then it becomes an issue of individual bad actors who perpetrate the majority of this crime, and the only ones of these individual bad actors that we can do anything about at all are those we put through the criminal justice system and find guilty. So even if you think that the US criminal justice system is a fair system dedicated to equal protection under the law for all people, you have to acknowledge that in officially reported cases of rape/sexual assault, that only 28% of people who experience an assault report it, of that 28% only about half will result in an arrest being made, only about 60 percent of those arrests will result in a felony conviction, and that only about 70% of those convictions result in someone being sent to prison for committing the act. This means that only about 1 out of every 20 rapists will ever spend a day in prison. And this assumes you believe that the US criminal justice system is fair, and that none of these conviction or sentencing numbers are impacted by factors like race, gender, class, or sexuality, or else it becomes pretty clear that people with access to power and authority within our society are very, very unlikely to ever face actual criminal conviction for their crimes. This might seem counter intuitive to some folks given the very brief period of time where people like Bill Cosby and Harvey Weinstein were getting convicted for these crimes, but these were serial offenders targeting people with a whole lot more power to speak up and be listened to than most survivors will ever experience. Celebrities and politicians accused of only a few acts of sexual violence might face some social and economic blow back in the US, but almost never face criminal conviction. And yet, the way the issue is talked about in the media, it is pretty easy to believe that every man has to walk around on eggshells when it comes to expressing sexual desire, engaging in “locker room talk,” or “just letting boys be boys.” Somehow, a lot of men are finding themselves identifying with largely mythical fantasy persona of the “man falsely accused of sexual violence,” who’s life is about to be destroyed by social ostracism and probable jail time. This too is a topic I will come back to again again in these blogs I think.
Which kind of leads to 4. Because the US legal system is “guilty or not guilty,” anyone found not guilty is expected to be treated as free from any obligation or consideration that they might have made a lot of terrible mistakes that hurt another person. You see this in the way that all the Trumps, Musks, Gaetzes, McMahons, act as soon as their cases are dropped from criminal or civil prosecution, even if those cases are dropped for reasons like “settled out of court.” On the one hand, it is really important that the overwhelming majority of people found not guilty of a crime are not ostracized by their communities or countries. But this becomes a problem when money and power are so effective as means of escaping the “guilty” verdict that defines whether any attention or acknowledgement of the violence occurred at all. This isn’t me saying specifically that any political candidate or person of authority who is ever accused once of sexually in appropriate behavior experience a complete and utter removal from society or branding with a scarlet letter, but it is me saying that people in positions of authority should be kept under more watchful eyes than the general public, and when they gain reputations for repeated inappropriate behavior, especially from multiple different stories from different people making accusations, this speaks badly of their ability to be an effective leader without placing themselves in compromising situations…even if they truly never did any of the things they are accused of.
5. You don’t prevent crime only by focusing on the punishment a person can receive for getting caught. Overly repressive attempts at increasing law enforcement to stop crime (crime generally, not just sex crimes) almost never results in a reduction of crime by itself. It might move where those crimes take place, and shift who the perpetrators of that crime target in planing those crimes, but it doesn’t actually stop the crimes from taking place. Especially under a repressive and authoritarian government, you can be fairly confident that any enforcement about sexual violence that does occur within those systems is going to be targeted at specific groups and that none of those groups are going to include the power brokers and leadership of those systems.
6. When criminal justice enforcement becomes the only tool used to stop sexual violence, you make it a lot more difficult to talk to young people about potentially problematic behavior, without essentially accusing those people of being criminals who deserve to be incarcerated if they have ever even gotten close to the line. This leads to a whole new generation of young folks who are afraid to talk about these issues with their friends or family members, and leads these people into being unprepared to handle situations that arise around them with any tools other than “call the cops,” which can be really difficult and ugly to deal with when it involves your friends or family or people you don’t want to put into potentially harmful, even lethal situations.
I don’t know if I am really done talking about this specific part of the problem yet or not, but this is all of the “why the criminal justice system is not solving the problem of sexual violence” stuff that I can think of this late at night, for now. If you think I have missed something specific that you want me to write more about , or think I missing the big picture entirely, be sure to let me know.