What would justice even look like?
Bill Cosby’s conviction for drugging and sexually assaulting three women—he’s been accused of similar and worse crimes by dozens—has been overturned. He is going to be released from prison.
Apparently, the Montgomery County, PA, district attorney before the current one made some kind of deal not to prosecute Cosby. “There was no evidence that promise was ever put in writing,” per the AP. But there was still some evidence persuasive enough to convince the Pennsylvania Supreme Court that Cosby never should have been prosecuted?
I don’t get it either, except insofar as it reflects the way our justice system usually works for rape and sexual assault victims: not at all.
That was one of my tweets in the first fifteen minutes after I saw the news, but it wasn’t the first. The first was this:
I have been on Twitter for thirteen years now, and I still haven’t learned my damn lesson about dropping opinions there that involve nuance. People did not take that tweet well, for reasons that are understandable but have nothing to do with what I meant by it.
What I meant by it:
I am trying to move away from carceral feminism, both because I believe the U.S. prison system is thoroughly rotten and because imprisoning a tiny handful of rapists—those responsible for less than 1% of rapes—does nothing to make society safer. In fact, it arguably makes us less safe by creating the illusion that our justice system is designed to adequately prosecute, penalize, and rehabilitate people who commit sexual violence, when it manifestly is not.
If we take “Does this make society safer?” as the fundamental question here—and I do—then it does not matter if Bill Cosby is free. His age, infirmity, near-universal recognizability, and notoriety will prevent him from having access to more victims during whatever years he has left.
The only good reasons for keeping him in prison, then, are punitive and symbolic. (Edited to add: Linda Hirshman notes on Twitter that I’m ignoring one very good reason, which is that legally speaking, his conviction should not have been overturned.) And while there is a salt-shriveled portion of my heart that believes those are excellent reasons to let Bill Cosby die in a cage, they go to the core of the problem with carceral feminism and carcerality in general. If we believe that harsh punishment should be the primary purpose of prisons, that becomes an excuse to allow or ignore all manner of human rights abuses within them.
Those rampant human rights abuses are happening not only to violent and remorseless people but to people convicted of nonviolent crimes and people convicted of crimes they never committed—who are disproportionately Black men. Wildly disproportionately.
None of that makes society safer—especially not for incarcerated people, their families, and their communities. It does, however, make rich people richer.
If we actually want to make society safer, we need to explore models of justice that aren’t based on satisfying our primitive thirst for punishing (perceived) wrongdoers.
In the meantime, though, it is always galling to see how money and fame can be used to opt out of the shitty system we have.
I’m still learning about all of the above, but I recommend the work of Michelle Alexander, Mariame Kaba, Ruth Wilson Gilmore, Angela Davis, and many other Black and brown scholars and activists who have been doing this work for years.
The part I already know a lot about is that there is no “justice” for victim/survivors under the system we have. The reasons for this range from terrible to righteous. On the terrible side, we have rape culture, police who don’t believe victims, evidence that gets destroyed or sits on shelves, prosecutors loath to pursue cases they don’t believe they can win, defense attorneys who work to destroy victims’ credibility by any means necessary, and jurors ignorant of both the law and the effects of trauma.
On the righteous side, we have defendants’ rights, which are and should be sacrosanct. A crime that most often involves a single perpetrator and victim, zero eyewitnesses, and no evidence of physical damage to the victim is extremely difficult to prove beyond a reasonable doubt. As it should be. But that leaves us with a conundrum: On paper, such rapes are illegal; in practice, they simply are not.
If victims know that the chance of retraumatization after reporting a rape is far, far higher than the chance of conviction; and perpetrators know the same about their own chances of being reported at all, let alone convicted, then the system we have does not treat the most common kind of rape—involving no weapon and no witnesses—like a violent crime. We acknowledge that it is one only in the abstract. In practice, 99.3% of the time, we do nothing.
Actually, we don’t just do nothing. We retroactively justify doing nothing, which is much worse. Instead of acknowledging that our system is not designed to resolve this tragic dilemma, we blame victims, fret over perpetrators’ futures, and generally act as if the lack of rape convictions must accurately reflect a lack of “real” rapes. Sure, maybe something happened to you, but it obviously wasn’t that serious, because we all know people who commit serious crimes go to prison. If they aren’t going to prison, then…
Carceral feminism comes about when people who understand that infuriating reality— often while coping with the pain of being victim/survivors themselves—can only conceive of “justice” as punishment for perpetrators under the system we have. Because we know how frequently this crime happens, it stands to reason that police should be making more arrests, prosecutors pursuing more cases, juries voting for more convictions, judges handing down harsher sentences.
Whether or not that would be more fair or equal, though, it wouldn’t be any more just. The system, otherwise unchanged, would continue to disproportionately punish poor men of color—especially those accused of sexual crimes against white women, regardless of whether they’re guilty—while exonerating white and/or wealthy predators. It would continue to focus on punishment rather than rehabilitation and reintegration, so serving time wouldn’t necessarily make anyone less likely to rape again after being released. It would continue to create a great deal more sexual violence, in fact, when the goal should be eradicating it in every form.
The question of what we should do instead is one I have not found an adequate answer for. Activists and scholars have a lot of suggestions and are constantly working on others, but so far, I haven’t been persuaded that anyone’s got it right. All I know is, what we do now is wrong. Wrong for victim/survivors, wrong for the people targeted by the Prison Industrial Complex, wrong for making society in any way safer.
The system we have now breeds rape culture, because we’re so bad at sitting with the reality—a whole lot of people get away with a whole lot of crime in this country—we fabricate reasons to believe it couldn’t possibly be true. The victim must be lying, the perpetrator must have been confused, the signals must have gotten crossed. It simply cannot be that 99.3% of the time these crimes occur, nothing happens to the people who commit them.
It cannot be, but it is.
So no, I do not care that the State has declined to physically punish Cosby any longer. I care that he was allowed to continue drugging and raping women for decades, while powerful people all around him knew it was going on. I care that for ages, female comics publicly joked about his predatory behavior, but the world only paid attention after a male comic did the same. I care that he was only tried and convicted on three counts out of 60—because of what that says about how seriously we take victims’ testimony. I care that some prosecutor apparently made a deal not to prosecute him—because of what that says about money and fame making some criminals more equal than others. I care that there are apparently no documents regarding that—because of what that says about the transparency of our current system.
I care, above all, that nothing in our current system of law enforcement, justice, and incarceration is designed to help victims of sexual violence or make society safer from sexual predators. In many ways, it’s designed to do the opposite.
Which means that even if I don’t know what it ultimately looks like, I know what we need is a whole new system.
This letter, like all my letters at the moment, is going out to all subscribers, paid and unpaid. I do not publish on a consistent schedule, so I don’t encourage you to send money unless you feel like I deserve a reward for not clogging up your inbox. If this changes in the future, I’ll let you know. Thanks for reading, feel free to share, etc.