The last few years have seen a strong, often bipartisan push for criminal justice reform. But certain categories of criminalized acts—those perceived as primarily harming women and girls— have been nearly immune from that spirit.
“Those most vocal about prison reform are also often the most punitive about gendered offenses, even minor ones,” writes Aya Gruber, a law professor at the University of Colorado, in her recent book The Feminist War on Crime (University of California Press). Gruber, a former public defender, worries that “women’s criminal law activism [has] not made prosecution and punishment more feminist” but instead has “made feminism more prosecutorial and punitive.”
There are generations of precedent for that. From the suffragists who played up xenophobic fears through Clintonera feminists’ zeal for sex offender registries, several waves of feminists have contributed to the carceral state. But that alliance isn’t inevitable. Another recent book—The Feminist and the Sex Offender (Verso), by journalist Judith Levine and Northeastern Illinois University professor Erica R. Meiners— suggests that if “one kind of feminism helped get us into this mess,” perhaps “a different kind of feminism is key to getting us out.” This alternative feminist movement would work with, not against, the movements to stop mass incarceration and to protect sex offenders’ rights.
The first wave of feminist crime warriors
By the late 1800s, major feminist groups—like the Women’s Christian Temperance Union (WCTU), which had 10 times as many members as the National Woman Suffrage Association— had moved beyond fighting for equal rights to broader “social purity” campaigns. These often aimed to protect girls and women from ruinous sex, using government force if necessary.
Dance halls were one target, being seen as a root of prostitution and seduction. (One 1912 book was titled From Dance Hall to White Slavery.) “Women’s groups championed robust enforcement of the tort of seduction, where a woman, or rather her male family members, could pursue monetary damages against men who falsely promised nuptials to procure sex,” writes Gruber. Many first-wave feminists “advocated for the criminal regulation of drunkenness and lust more generally.” Progressive Era feminists also embraced the idea that “vulnerable women...required state management for their own good.” They often justified this by pointing to sex trafficking, as “the narrative of the seducer who cajoled women into consenting to their own ruin had given way to the narrative of the slaver who captured unsuspecting girls and procured sex through punishment, not persuasion,” writes Gruber. None of this was great for girls or women—particularly not if they were women of color or immigrants or if they fell outside conventional bounds of femininity or sexual propriety. But it was good for officials who wanted to tighten U.S. borders and nationalize law enforcement. It helped usher in the first federal immigration restriction, the Page Act of 1875, which banned women from East Asia from coming here “for the purposes of prostitution.” Later, it helped give us the 18th Amendment, banning alcohol. And it gave us the Mann Act of 1910, which criminalized bringing a woman across state lines for “prostitution or debauchery, or for any other immoral purpose.”
The law—popularly known then as the “White-Slave Traffic Act”—became a pretext for the federal authorities to monitor transportation and for cops to harass black people, immigrants, interracial couples, LGBT travelers, women dressed immodestly, and ladies whose families complained about them leaving home. “It was women who bore the primary brunt of criminal law management of commercial sex,” Gruber reports. In the 1915 case U.S. v. Holte, the Supreme Court ruled that women could be charged for participating in their own interstate transportation.
First-wave feminists also succeeded in sharply raising the age of sexual consent. In 1885, most states followed English law and set the age at 10 years old; by 1920 all but one placed it at 16, 17, or 18. That may seem like an unambiguous win. But in practice, Gruber points out, the law was enforced in a way that “ended up largely punishing girls, who were locked up [by the state] to prevent men from having sex with them.” One 1916 study found 51 percent of girls charged in Chicago’s juvenile court were institutionalized, compared to just 21 percent of boys.
How boomer feminists learned to love the state
By the 1960s, a new feminist consciousness was being forged in the civil rights and antiwar movements. Initially, this second wave resembled the “different kind of feminism” that Levine and Meiners call for: It opposed authorities of all sorts, an orientation that held true during its early forays into fighting sexual assault and domestic abuse.
“The nascent battered women’s movement was radical and anti-authoritarian at its core,” Gruber reports. It was more likely to offer free self-defense classes than to call for new criminal sanctions. But “as the battered women’s and antirape movements grew, different feminists with different commitments vied for control of the narrative and agenda....Some feminists allied with state authorities, and indeed, some were state authorities.”
Groups like the National Organization for Women and other avatars of mainstream mid-century feminism “lobbied to repeal sexist laws, wrote model legislation, and met with police and members of the judiciary to educate them about women’s frustrating and traumatizing experiences with the legal system,” write Levine and Meiners. “But anti-violence feminists from the left, especially women of color, were adamantly opposed to outsourcing vengeance to the state.” These feminists “learned from experience that prisons do not end violence, but instead perpetrate and perpetuate it, while destroying individual lives, families, and communities.”
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