Is the progressive movement to reform our criminal justice system and make it more humane at odds with the equally progressive desire to more aggressively punish rapists?
The story that served as the impetus for bringing this topic to wider attention involves filmmaker Nate Parker, a black man who was once accused of sexual assault and later acquitted. There has been some debate over how to approach the work of someone who may be a rapist, even if a court of law didn’t hold them accountable. Is it morally wrong or unethical to see a film made by someone you think is a sexual abuser? My answer to that is fairly simple as it stems from my general perspective on ethical consumption: only each individual can make that determination, cognizant of the knowledge that pure ethical consumption is impossible. We all have to make these choices for ourselves and decide what we do and don’t want to support, to the extent we think that support might constitute an endorsement of the behavior of those involved in creating what we enjoy or consume.
Professional contrarian and gadfly Freddie deBoer decided to come at it another way. In a post that’s been circulating online, he raises the question of whether criminal justice reform and better outcomes for sexual assault victims are fundamentally at odds. Can we crack down on rapists while, at the same time, making our prison system more humane? Is that realistic?
Upon initial reading, I thought he made some interesting points. The American criminal justice system is notoriously punitive. For many people, a felony conviction is practically a kiss of death, at least when it comes to one’s career prospects. That we imprison more people than any nation on Earth and that our approach to justice shies away from rehabilitation in favor of harsh punishment are facts not in dispute. However, our system is also deeply racist and has been virtually since its inception. If you are white and relatively well off, the system is already pretty humane–just ask Martha Stewart. But if you’re poor, or especially if you are a person of color, a presumption of innocence is no guarantee. The consequences that await you, should a conviction be obtained, are categorically worse than anything a typical white person facing the same charges would get.
The facts about sexual assault are equally damning. While we don’t know exactly how many assault go unreported, it is at least a large proportion, and possibly the vast majority. When complaints are made to police, they rarely result in charges against a suspect. And on those rare occasions when a suspect is charged, they face a slim chance of being convicted. Even then, a convicted rapist or sexual abuser is unlikely to face a harsh sentence–unless they happen to be something other than white.
These details undermine deBoer’s argument, as does his particular focus on sex crimes. We already have a system that is, to put it bluntly, rather soft on sexual offenders. To the extent people are punished at all, yes, some are punished very severely, perhaps out of proportion to their crimes. We’ve all heard the stories of, for instance, people being marked as sex offenders for life because they urinated in public once. Such extreme outcomes are clearly unjust, but they’re also far from the norm. The norm is a society in which rapists almost always get away with it, leaving their victims with lasting trauma. Perhaps we can concern ourselves heavily with the humane treatment of sexual abusers once we’re actually more diligent about listening to victims, pursuing their abusers, and holding those abusers accountable under the law.
DeBoer worries that more aggressive pursuit of sex offenders will, due to our system’s racist design, inevitably impact black men more cruelly and profoundly than anyone else. I have no doubts about that at all. But this ignores that our system already functions in that way, and it’s white men like Brock Turner who represent the more typical case–the rapist who gets a slap on the wrist because of a justice system that gives those with the most privilege the benefit of the doubt.
Curiously, deBoer’s piece doesn’t mention privilege at all, even though it’s an essential component of these issues. Privilege is why so many men get away with rape. The movement to believe victims, to pursue sexual predators more aggressively–this is an active push against that privilege, and rightly so. DeBoer is worried about the scales becoming unbalanced in the other direction before we’ve even come close to balancing them in the first place. He’s trying to solve problems that don’t exist before we’ve done nearly enough to solve the problems that do exist.
Is the tension he describes real, though? Speaking only for myself, I can say that it is. I don’t want a justice system that focuses on harsh punishment over finding ways to make criminals productive citizens who can contribute to society. Ultimately, I think that is what will be required: a system which offers extensive resources to victims and criminals, to restore their dignity and self-worth, to allow them to function in society. In the case of criminals, repaying of their debt to society in a more meaningful fashion than simply locking them up or putting them into chain gangs doing busy work would be a good avenue to explore.
At the same time, however, people who commit sex crimes are dangerous. It comes off more than a little tone deaf to suggest that what rapists need is sympathy, understanding, and healing, when we won’t even give their victims that right now. Yes, they may deserve those things in the same sense that all humans deserve them. It is our capacity for compassion and forgiveness, our belief in redemption, that make us who we are. These are strong qualities that should be protected and promoted. But we must also protect people who have been preyed upon and victimized, to build them up and restore them, to give them justice and peace of mind. To place the future prospects of a rapist ahead of that strikes me as insensitive if not outright preposterous. And when we’re talking about a film director like Nate Parker, the cold reality makes such a debate look absurd. Is Birth of a Nation‘s box office going to suffer appreciably because Internet progressives think Parker’s a rapist? Almost certainly not. Is his career likely to be dimmed by these revelations? I very much doubt it.
Hollywood in particular has shown a grievous propensity for turning a blind eye if not directly covering up sexual misdeeds. Bill Cosby preyed on dozens of women over decades, in what was apparently an open secret, and no one did anything. Those with visibility and power said nothing and did nothing. They pretended it wasn’t happening, or they looked away, or they helped protect him. That is the reality of Hollywood, and it’s not altogether different from how the rest of us tend to respond, either.
As a result, deBoer using the Nate Parker case as a vehicle to explore the proposition of a more humane criminal justice system makes very little sense. Our system is already considerably humane if you have the right skin tone and enough money. Figure out how to filter that sort of consideration downstream toward people of color, toward the poor, and then curb abuses that still occur at the edges. At the same time, handle sexual assault accusations with much more seriousness and care. Many people don’t report their assaults or don’t go through with criminal charges because they know the results are so dismal. Changing those results means approaching these cases in different ways, arguing them differently before juries, but also changing our overall culture to stop overprivileging the narratives of men.
And there’s the rub: this is, in the end, a cultural problem. It’s not called rape culture for nothing. Police and judges and juries don’t believe women who make these accusations because we, as a society, refuse to believe them, too. The Brock Turners of the world get a pass because too many of us will make excuses for a handsome young white man with a nice smile and a promising future, and because too many of us think women’s bodies–even women themselves–are disposable playthings to be used at the pleasure of men. American culture is also a violent, retributive one in general, compared to our Western peers. That’s a topic worth exploring all on its own, perhaps. These cultural factors are deeply intertwined, and they make up the fabric of our civil institutions and legal system, as well. We cannot ignore any of this in our efforts to reform our systems and make them work better.
In his piece, deBoer insists that we need to ask: what does success look like? To me, success looks like a society in which sexual assault almost never happens, in part because our culture changed such that men are very powerfully socialized against it, and also because the consequences for being caught are too severe. DeBoer all but concern trolls over the possibility that the mere accusation of sexual assault bestows an indelible mark of shame, when the current reality shows that, for the most part, such accusations rub off easily. This is not a sign of a system that’s going too far, but a system that has failed to serve the victims of sexual assault, a state of affairs that many people are rightfully upset about.
Let’s not ignore today’s problems in the name of solving tomorrow’s as-yet-unarisen ones.
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