Aya Gruber’s “The Feminist War on Crime”: A Review
In 2020, progressives turned against Karens — white women became not only an acceptable, but a necessary target of woke anger. The grotesque and cruel talk signaled that liberalism is changing again and feminism is in danger of losing its status as the elite ideology of America. Talk about ‘people of color’ came up out of nowhere, as well as about ‘trans people’, and the result is a concealed class struggle against the elites. At the same time, criminal justice reform is a live political issue, and here feminism will face the full wrath of the wokies once it becomes obvious to what extent incarceration is a feminism problem.
Sexual assaults play a crucial role in mass incarceration. 12.4% of prisoners in state and federal prison are sex offenders, a number akin to the 15.7% who are in prison for drug crimes (according to the 2015 Bureau of Justice report). More are imprisoned for sex offenses than for burglary or non-sexual assaults.
The paradox, as Aya Gruber, a law professor at the University of Colorado and self-proclaimed feminist and liberal, notes in The Feminist War on Crime: The Unexpected Role of Women’s Liberation in Mass Incarceration, is that incidents of domestic violence and rape are waning. Are most abusers behind bars, leaving fewer free to roam?
Feminism as Ideology of Legal Revenge
Gruber argues that changes in the law, passed at the behest of feminist reformers, have stacked the deck against the accused (mostly men) in sexual offense cases. The changes are serious, vast, and they come from multiple sources which, taken together, suggest that a punitive version of what Gruber calls carceral feminism is now in power. Her concern is not so much to prove that this ideology has led to vast changes in incarceration for domestic violence and rape. Rather, and more interestingly, Gruber seeks to show that the ideological basis for the regime of legal revenge is faulty and unscientific.
Several aspects of laws governing domestic violence and rape have changed, in accord with the basic assumptions of feminism, making these crimes unique in the criminal justice system. For instance, in cases of domestic violence, calls to the police often trigger an automatic arrest (in 19 states and 7 more have “preferred prosecution” policies), followed by a no-contact order, a no-drop prosecution, trial processes with or without victim participation, sentencing with automatic no-contact parole at the end and registration as a sex offender for life.
In rape cases, the victim’s past sexual history is shielded from a jury, but not the perpetrator’s. Moreover, rape has been legally redefined in many jurisdictions. Affirmative consent or ‘only yes-means-yes’ laws (putting an emphasis on the victim’s state of mind) have replaced ‘forcible conduct’ laws (which emphasized the perpetrator’s acts). Special courts and police units — with different standards of evidence — have been created for sexual crimes. Universities have, until recently, run with these revisions in rape law, lowering the standards of evidence and gutting procedural protections for the accused.
Gruber shows that as a result of these changes “domestic assaults are more likely to result in arrest, prosecution, and incarceration than nondomestic assaults” that adhere to the old rules and processes. As Gruber relays a footnote, sex offenders made up 0.8% of the prison population in 1990 and 6.2% in 2013.
These policy changes come from feminist attempts to revise due process and tilt the scales of justice. Their argument is that only such changes could break the strength of America’s patriarchy. Women’s minds were especially considered enslaved, which complicated charging and convicting men. Domestic violence victims were, feminists claimed, too terrified and under the “coercive control” of their abusers to press charges themselves, and police and prosecutors were part of the patriarchy too, blaming women for abuse or considering family too sacred to break up over a passing passionate conflict: thus mandatory arrests and no-drop prosecutions. Survivors stayed with their men out of fear or psychological dependence: thus the mandatory no-contact orders to break the dependence. Women submitted to date rape or were unable to say “no,” much less resist, because alleged victims were, as Gruber writes, “frozen in fright,” traumatized, or in a state of “tonic immobility.” Women who testify in rape cases, they say, are “raped a second time”: thus, shielding them from cross-examination or from testifying, protects women.
The Historical Record
Gruber tests these feminist claims against reality in the meat of her book. Feminists claim that no one took sexual assaults seriously until they got these laws changed. Not true, Gruber shows. American, and indeed Western countries, always took rape very seriously — and punished them more strictly, finding ways of addressing sexual assault through moral reform. (Temperance movements and Prohibition were fruits of this effort.)
Nor were the feminists right about the police. Feminists claimed that “sexist male officers influenced by chauvinist law and culture, who refused to arrest abusers because they believed that abuse was acceptable, the women deserved it, or the matter was personal.” Police, it turns out, may have been reluctant to arrest people in domestic altercations for all the obvious, non-ideological reasons: because it was difficult to figure out who was to blame, because intervention tends to make things worse, because women started it and men defended themselves, or because women loved their men and wanted to keep their homes and the fathers of their children. Very few women cowered in fear of coercive husbands. These not-very-patriarchal police end up being way more sensible than feminist theory said they would be. Once police had to arrest someone, these supposedly ‘abuser-loving patriarchal cops’ mostly arrested men (arrests of men are up 40% since these laws went into effect) and increasingly arrest women too (up 200% since the turn of the century) and family re-unification suffered greatly.
Nor were feminists right about the courts, according to Gruber. While feminists assumed juries were biased against victims, quite the contrary turned out to be the case. The rate of prosecutions for rape convictions was much higher than for other crimes before no-drop prosecutions were adopted, and conviction rates were higher for cases that were brought to trial too. Not very patriarchal prosecutors were more sensible than feminist theory said they would be, but feminists succeeded in tying their hands anyway.
Nor were feminists right about men. The motives for abuse and rape are much more complicated than mere patriarchy. As Gruber tells the story, poverty and frustration from racial and ethnic discrimination are linked to such assaults. Indeed, minority men are “disproportionately” caught in the carceral state due to these sexual assaults. (Whether they commit more such crimes she does not say.) It’s not that the police or the laws are sexist; locking up black and brown bodies is an instrument of white supremacy that feminists surprisingly abet.
Nor were feminists right about women. The feminist tropes to excuse nonreporting do not withstand scrutiny. Women stay with men not because they have internalized a “patriarchal consciousness” of dependence, but because of “the money, the children, her house, and her life.” Women desire things in addition to autonomy for their own happiness.
Feminists made tendentious claims about society, police, courts, men, and women. That’s a lot to get wrong. What to do about these errors? Is the problem with “carceral feminism” its offense to due process or its disparate impact on minorities? This is where Gruber’s sensible book goes off the rails.
Perhaps a return to the status quo ante feminism is in order — a regime of due process, careful evidence gathering, where neither this nor other crimes have pride of place and where neither domestic abuse nor rape are considered a crime of one half of humanity against another. Men and women, living in close quarters, will have conflicts, even physical ones, at times; in rare occurrences, men will violate women’s rights. We need legal processes to handle these disputes. And those processes should identify the guilty, punish them and remediate where it is desirable.
The New Progressive Utopia
Gruber never really considers such a return to the status quo ante feminism where these crimes would be investigated and prosecuted like any other crime. Instead of muddling through with the crooked wood of human nature, she proposes a revolution in human affairs, one part sexual liberation and one part anti-racism. Domestic violence and rape can be ended through (1) comprehensive sex education and (2) the abolition of police and prisons.
Americans and especially America’s disadvantaged minorities are, in her view, way too sexually repressed. The end of repression will mean the end of domestic violence and rape. A “sexuality education” that “teaches kids about sexual pleasure, their nascent sexual bodies, and sexual intimacy” and encourages “sexual pleasure” early in grade school will raise the supply of sex and end sexual repression. Parents, to be sure, have an “innate aversion” to teaching their children as “erogenous actors.” That aversion could be conquered if feminists focused their energies on very early sex education instead of focusing on tendentious claims of harassment like Title IX witch hunts.
Until we sexualize childhood, however, the way to end carceral feminism, according to Gruber, is to abolish the police and prisons. The police and prosecutors aren’t sexist; they are racist. As a result, she thinks, too many minorities end up in prison or caught up in the justice system. Ending that system will free disadvantaged minorities from the clutches of the white supremacist state.
When I first read Gruber’s book, her sops to sexual liberation and critical race theory seemed a rhetorical strategy to appeal to her Leftist legal colleagues. Academics cannot be convinced that police are actual human beings with a tough job that they do remarkably well, given the circumstances. But at least she might convince her colleagues that cops aren’t sexist, I thought. Unfortunately, she just goes on to damn them as racist. Crazy as that sounds, what’s even crazier is that the very same analysis she uses to call carceral feminism into question applies to the assumptions that the police ‘hate’ disadvantaged minorities.
For the sensible Gruber, an ideology (feminism) obscures very real problems of marital life and sexual relations. Gruber’s solution isn’t to abandon ideology, but rather to adopt two additional ideologies and wish those problems away. Against the crazier ideas of feminists, she adds the crazy idea of sexualizing children! Justice itself requires this, apparently, since the excessive repression of our population is the cause of sexual violence, just as systematic racism is the cause of punishment for that violence.
Her analysis suffers from all the problems endemic to our reigning civil rights ideology. She doesn’t touch reality sufficiently: She never considers the possibility that minorities commit more sexual assaults, and therefore are imprisoned in greater numbers. Here, she refuses to even get the facts.
Toward a Future Based on Human Nature
Gruber performs a great public service in showing how state and local governments passed feminist sexual assault laws based on an ideological diagnosis, instead of a real analysis of the human condition. Men are not uniformly perpetrators; prosecutors and police aim to enforce laws in complicated circumstances; women are responsible agents able to give an account of themselves and act with purpose given the whole of their lives. Feminist ideology denies all of these seemingly commonsensical premises. Patriarchy as feminists imagine it simply does not exist. Good for her!
Gruber, however, cannot escape ideological reconstructions. Her post-liberal solutions, such as they are, are as alien to human experience as feminism itself. Against crazy people, we have to remind ourselves and our society that the line between good and evil runs through the heart of every human being and, therefore, every institution, not through races, sexes or classes. This is a powerful reason for defending careful investigation on an individual basis, due process, cross-examination, punishment, and remediation. We’d be courting catastrophe to encourage social experiments in the name of social justice when we see that the proponents are crazy people. We should instead return to a semblance of the status quo ante feminism legally and morally. This may not be doing enough to satisfy ideologues and utopian reformers, but it would be just, meet, and salutary.