In this watershed moment when policymakers feel liberated to embrace noncarceral responses to the behaviors that laws label crimes, one question rings out: “What about rape and domestic violence?” The pro-policing contingent intends this as a rhetorical “gotcha.” But many progressives open to meaningful reform genuinely worry about the demise of gender crime law, which they see as a formidable legal tool against the patriarchy.
The entrenched instinct to equate gender justice with criminal prosecution renders feminism one of the last legitimators of the penal state in an era of declining liberal faith in criminal law. My book The Feminist War on Crime traces the complex symbiotic relationship between U.S. feminism and the American penal system. Repeatedly, feminists stood at the crossroads of antiviolence policy and, despite warnings from insiders and other options, chose criminal law. I hope to dislodge this instinct to seek liberation through prosecution.
In the dominant genealogical account, contemporary carceral feminism arose fortuitously when tough-on-crime politicians and prosecutors coopted the feminist antiviolence agenda. This is often expressed by feminist scholars as law enforcement “taking over” the movement. Feminists in the 1970s and 80s, the account goes, reacted to centuries of social and legal tolerance for rape and DV and finally pushed the state to treat violence against women as a serious crime. This modest invocation of criminal law was seized upon by conservatives eager to use vulnerable women as poster children for the war on crime. By the close of the millennium, the stalwart suit-wearing SVU prosecutor had replaced the bra-burner as the symbol of women’s empowerment.
This dominant narrative, however, is incomplete in ways that serve to sustain feminism’s carceral bent. In this post, I explore two. First, the narrative incorrectly presumes that until the late twentieth century, violence against women was uniformly tolerated and early feminist efforts quickly fell under the weight of the patriarchy. This presumption prefigures the contemporary instinct that weak criminal law is sexist and strong criminal law is feminist. Second, characterizing the late twentieth-century gender crime program as a function of conservatives coopting the feminist movement obscures factors internal to feminism (or powerful branches of it) that produced the criminal law alliance.
Let me first address the historical tolerance point. It turns out that the feminist war on crime is as old as feminism itself. The desire to influence sexual and domestic violence law and policy was central to nineteenth-century feminism. Early feminist reforms efforts interfaced with and reinforced other hierarchies. Feminists’ calls to punish “bestial rapists” and “sexual deviants” were quite successful, finding support among Southern antiblack racists and Northern morality reformers alike. The resulting criminal laws were not underenforced so much as selectively enforced depending on the race and class status of the parties.
One of the most successful rape reform efforts was the Women’s Christian Temperance Union’s (WCTU) campaign in the 1890s to raise the age-of-consent. Led by “do-everything” president Frances Willard, the WCTU got states to raise the age above sixteen and seventeen years old. These reforms protected many young women from rapists, even as they harmed other more marginalized women. Legal historian Jane Larson has observed the “peculiar paradox of early feminist sexual politics” that “mostly girls rather than men . . . were placed in state custody in order to prevent underage sex.”
The WCTU’s rhetorical strategy also involved racist tropes—the same ones that drove Southern lynching. Indeed, Ida B. Wells castigated Willard for stirring up the mob when she toured the South in support of age-of-consent reforms. The race-rape connection persists. Historian Estelle Freedman has noted “the centrality of race” to American conceptions of rape. It is no coincidence that Donald Trump launched his white-supremacist presidency by calling Mexican immigrants rapists.
The second problem with the dominant narrative is that it characterizes feminism’s carcerality as a casualty of the larger war on crime. However, feminism’s contribution to mass incarceration was not always passive and unintentional. Rather, feminism helped shape the modern criminal system, just as participation in the system shaped modern feminism.
Take, for example, DV reform in the ‘80s and ‘90s, which is often remembered—fondly or regretfully—for adopting a “law enforcement model” of separation and arrest. The early battered women’s movement of the 1970s was in fact deeply anti-authoritarian, born of Vietnam-war protest radicalism. Feminists in the movement largely traced abuse to sexist marriage norms, economic inequality, and a cruel welfare system, not inadequate punishment. Feminists of color saw militarism and white supremacy as driving forces in abuse and warned explicitly against policing. In those early days, hardly any stakeholders—including police and prosecutors—endorsed strengthening criminal law.
However, there was a powerful group of victims’ advocates and lawyers who represented abused women in the courts. They heard horror stories from their clients about brutal beatings and police inaction. These were real women who had faced real horror, but they represented a specific subset of battered women: Thad already separated and wanted an arrest. In 1976, feminist lawyers in New York filed a landmark civil rights suit, Bruno v. Codd, which alleged that the NYPD violated equal protection by allowing officers to “mediate” in lieu of arrest. The case settled and resulted in a new departmental policy with arrest as the default. On the West Coast, a similar suit spelled the end of Oakland’s policy directing police to attempt to mediate all misdemeanor assaults.
Police a soon jumped on the pro-arrest bandwagon, which they saw as “getting them out of the social work business.” So did policymakers. Virginia passed its DV mandatory arrest law in 1997, and explained the rationale: “By placing the burden on the police to decide whether to make the arrest in a domestic violence case, the law asks the officer to serve as a counselor, which he is not trained to do and is beyond the requirements of his position. It is unfair to the police officer for him to be required to do more than preserve public order and prevent crime.”
By the early 1990s, deterrence studies showed pro-arrest policies did not consistently reduce abuse and tended to increase violence in communities of color with high levels of unemployment. Other studies revealed that the policies increased arrests of women for DV and other offenses. More recent research suggests that rather than “saving women’s lives,” the law enforcement program puts women at greater risk of domestic homicide.
But with so much financial, political, and academic capital invested in law enforcement, many feminists were reluctant to admit it had been a mistake. Instead, they doubled down, insisting that the regime wasn’t tough enough. Reacting to findings that arrest increased violence among unemployed black men, one activist wrote in 1992, “That a few hours under arrest fails to deter the abusers who are generally considered to be society’s failures is hardly surprising. In some subcultures of ghettoized people, where imprisonment is all too common, a few hours in jail may be seen as only minor irritation.” The answer for her and other feminists was to make “the stakes . . . higher” through carceral policies like no-drop prosecution and limitations on diversion and pretrial release.
In the years that followed, feminists’ law-enforcement agenda found synergy with broader political shifts towards crime control. As part of the campaign to crown Democrats the tough-on-crime party, Bill Clinton made the infamous 1994 Crime Bill a signature effort of his administration. Joe Biden boasted of the bill, “The liberal wing of the Democratic Party is for 100,000 cops [and] 125,000 new state prison cells.” Bernie Sanders, who initially voiced strong opposition, voted for the bill because it included the Violence Against Women Act. In 2016, his campaign responded to criticism of that vote, explaining that Sanders objected to the bill’s “mass incarceration and death penalty provisions,” but he ultimately “supported [it] to protect women.”
Contemporary feminists stand at a familiar crossroad. Some, like the second-wavers before them, are deciding whether to support stricter policing and novel criminal laws, including affirmative consent laws, revenge porn laws, antitrafficking prohibitions, and a crime of “coercive control.” Others have already foresworn expanding criminal law but still wonder whether to entertain a carve-out exempting gender crimes from larger calls for depolicing, decarceration, and abolition. Feminists face these choices at a time when there are many alternatives to pro-carceral reform and when a chorus of voices from within—critical race feminists, abolitionist feminists, sex-positive feminists, and restorative justice feminists—are raising a red flag.
Will feminists again choose criminal law?
