There is a time and place for hardline criminal justice, but tough is not enough.
A law professor and former public defender, Aya Gruber has recently written a polemic against what she describes as a “feminist war” against males in the criminal justice system and the semi-judicial systems used in colleges and universities for sexual harassment claims. Gruber’s disposition has been produced by her career trajectory: she was once a public defender and had male clients accused of battery, sexual assault, and other improprieties, for which they may or may not have been guilty. Yet, as she describes in The Feminist War on Crime, her experience demonstrated the formal legal system’s capacity to play upon modern feminist presumptions regarding young males and their relations with females. This may be a case of standing where one sits, but Gruber does seem to have made an earnest reassessment of the assumptions she held as a young feminist once she was forced to analyze and defend actual cases brought against her clients.
Gruber began her career as a firm believer in the modern, so-called second-wave feminist assumptions regarding males: that they primarily seek to assert power over women, not only in violent encounters, but in many (perhaps most) aspects of male-female relations. Gruber’s experiences challenging these assumptions produced this work, of which only a minor part is a reflective memoir. Most of the book is dedicated to revealing the historical development of the political and cultural dispositions of feminists in America regarding how domestic violence and assaults should be addressed by society. As Gruber notes, this book originated out of a personal need to understand her “own torn feelings about being a feminist and an incarceration critic and interrogate why [she] harbored certain beliefs, made certain presumptions, and had certain intuitions.” This personal journey produced keen insights into the intellectual history of American feminism.
Feminism and Crime
First, Gruber traces the history of sexual assault law, beginning in the colonial period, showing how law was concerned with the “policing of sex” well into the 19th century. The policing of sex was the means for protecting women’s “purity,” or honor. The penalty for rape at common law was the most severe possible: death. In addition to criminal sanctions, a civil tort was available for “seduction,” which was the wrong of promising to marry a woman for the purpose of having sex with her. Gruber notes that the laws policing sex and male-on-female assaults were enforced, but only selectively. Gruber rightly pays special attention to the role of Frances Willard and her advocacy organization, the Women’s Christian Temperance Union (WCTU), which advocated for the seduction tort and, as the organization’s name implies, temperance legislation. Alcoholism was a society-wide problem in 19th-century America, with men not only showing up drunk to work but also brutally mistreating their wives. The WCTU was an early “root causes” group: if drunkenness could be addressed, then it was believed that women’s safety and happiness would be greatly increased.
The temperance movement was part of a larger reform movement, generally subsumed under the banner of progressivism. Many of these efforts achieved their legislative goals, such as raising the age of consent in states from ten to sixteen or eighteen, passing the federal Mann Act of 1910, which prohibited interstate transport of women across state lines for the purpose of prostitution, and eventually outlawing liquor production, transport, and sale with the ratification of the Eighteenth Amendment in 1919. The crime attendant to Prohibition was a famous instance of unintended consequences, but Gruber argues that so too was the “purity crusade” that the progressives of the early 20th century implemented: She contends that “marginalized individuals,” such as African-American males accused of rape by white women, were harmed by the progressives’ efforts at protecting women’s purity through increased criminal attention to rape.
Gruber also reviews post-1960s, second-wave feminism’s efforts at criminal justice reform. Most of the reforms were enacted at the state level in the 1980s, including laws that required mandatory arrests when police were called to a domestic disturbance and so-called “no-drop” prosecution of domestic assaults, which prevented the state from dropping charges against those accused of battery. Gruber identifies three groups of feminist reformers of domestic violence law in the 1970s and 80s who had different goals and methods for their intended reforms: 1) radical feminists, who understood domestic violence, through a Marxist lens, as a product of a capitalist system, 2) antipatriarchy feminists, including lesbian separatists, who understood domestic violence within the context of “sexist marriage norms and male economic privilege”, and 3) a group Gruber terms “legal feminists,” for whom domestic violence was a problem that thrived as a result of social permissiveness and insufficient deterrence due to lax enforcement of the criminal law. This last group is Gruber’s bête noire because, she contends, they saw male-on-female violence as an enforcement problem, rather than trying to understand and attack the underlying root causes of such violence.
In short, the “legal feminists” were a feminist version of a “tough on crime” ethos, which gained salience in the 1980s and 1990s. This response was due to the perceptions that expanded criminal due process protections, which began in the 1960s under the leadership of the Warren Court, had led to leniency in prosecuting and punishing criminals of all stripes. Accordingly, the 1980s saw an unlikely convergence of aims among radical feminists and cultural conservatives. Gruber calls this the “carceral turn” of the feminist movement: feminists gave in to “crime logic,” which sees criminal behavior only in terms of wrongful conduct (rather than root causes) and only looks toward punishment (incarceration) as the answer.
The Excesses of the Carceral Turn
Gruber contends this carceral turn went overboard, failing to treat domestic violence and male-female relations as fundamentally different from other criminal-victim relationships. She criticizes the legal feminists for cherry-picking social science studies that supported their views and for ignoring evidence that most male-female confrontations did not warrant arrest—indeed, that arrests escalate problems in a male-female relationship. For example, legal feminists rejected empirical evidence suggesting that some domestic violence is initiated by females and is mutual. In short, Gruber argues, legal feminists were far too ideologically committed to mandatory arrest policies, which make matters worse for the very people society wants to help: the women in the relationship.
Gruber also grapples with the legal feminists’ understanding of male-female sexual relations, especially in the context of date rape. She describes how legal feminists have subscribed to a “feminist dominance theory,” which posits that women are victims of a “male supremacist” society. With no apparent sense of irony, the dominance theorists have looked to the state—the very institutions that are supposedly dominated by males—to correct and punish the male supremacist society. Gruber contends that legal feminists have failed to understand (or consciously ignored) how sexual consent is given in nonverbal behavior. She describes how dominance theory led to prosecution-favorable rape shield laws and affirmative consent requirements. This view also led to the “Dear Colleague Letter” in 2011 from the Obama Department of Education’s Office of Civil Rights, which provided guidance to colleges and universities receiving federal funds on how to interpret and apply federal legislation on sexual assault. Such guidance is often interpreted by recipients as mandatory instruction from the federal government, which if ignored risks the loss of federal funding. Again, Gruber notes how such a policy was the product of ideology rather than empirical evidence. She cites, in a footnote, Justice Department reports indicating on and off-campus rapes had been in decline for years prior to the claims of a “campus rape crisis” in 2009.
Gruber concludes by positing her own “neofeminist” program of reform, which she hopes will demonstrate that prison is not the answer to sex crime. Her prescription is abstract and short on details. She wants to abandon seeing women as victims of men; instead she wants women to be seen as working within “a complex world of social, cultural, and institutional constraints,” especially in the context of date-rape allegations and spousal abuse situations. She expressly states that “there is no everywoman.”
As for policy preferences, she provides nothing definitive, but earlier in the book she comes out strongly against mandatory arrest laws for domestic violence calls and favors traditional due process protections for both the criminally accused and college and university students defending against allegations in campus proceedings.
Regardless of Gruber’s assumptions regarding the “constraints” women (and men) face in American society, her concerns about the criminal justice system and college sexual assault system’s treatment of men will find supporters. She will likely find allies in some conservatives who reject legal feminists’ conceptions of women as mere victims at the hands of men and libertarians who fear the awesome power of the state in the criminal justice system. On the other hand, some conservatives will see virtue in clear and severe punishment as a way to reduce (if not eliminate) criminal sexual behavior. The 1980s alliance between tough-on-crime conservatives and radical feminists may persist. Gruber will also likely find trans-partisan support for her attention to the complex social and psychological nature of male-female relationships. She urges the justice system to take into account the “root causes” of male-female violence, but also to evaluate the “convergent interests” of males and females in relationships, whether it be shared financial supports, children, or other commonalities, which make such relationships very different from other victim-perpetrator relations. In short, she hopes to avoid “criminalizing” all bad behavior.
From a conservative or libertarian perspective, Gruber’s work may be interpreted as an example of a former radical who has started to modify her views in light of experience. She may be reminiscent of Irving Kristol’s description of a neoconservative as a “liberal who’s been mugged by reality.” At present, Gruber’s argument is that of an insurgent, made against a powerful legal regime that is dominant in the academy and not widely shared among her fellow feminists. She has made an important challenge to the prevailing orthodoxy regarding sexual violence, one that will be informative (and, hopefully, persuasive) to radicals, conservatives, and moderates alike.