In her new book, The Feminist War on Crime, Professor Aya Gruber provides a critique of feminists, who have sought political vindication through a governance of punishment.1 Professor Elizabeth Bernstein coined the term “carceral feminism” to describe the feminist commitment to “a law and order agenda and . . . a drift from the welfare state to the carceral state as the enforcement apparatus for feminist goals.”2 While feminist movements have expanded the opportunities available to women and girls, too often their means for achieving these accomplishments have been paved on a path of the privileges of feminist elites.3 These privileges are immune from the pressures of multiple forms of subordination that form the interstitial web of inequality that many other women encounter.4 These other women are also Other5 women, in that they are often outsiders in American society, not just because they are women, but also because they are women of color, poor, immigrant, less educated, disabled, and/or queer.6 The positionality of these Other women is important because they often have personal experiences that make engagement with the state apparatus for punishment undesirable.7 As Professor Beth Richie documents, Black feminists advanced the concerns of the Other women through their activism for state responses that address the systemic, material conditions that make women vulnerable to violence, rather than through engagement with the technologies of punishment.8 Other women have experienced state violence, either through the inherited trauma that runs in their blood from the violence against their ancestors, or through their daily experiences of everyday subordination within their communities. White, elite feminists have often missed their perspectives.9 Or, at times, they have outright demeaned their perspectives (p. 56). Either way, the path to gender equality has had an unsettling entanglement with carcerality.10 And the logics of punishment and imprisonment have informed feminist demands for reforms.11 This feminist fascination with the carceral is the subject of Gruber’s book.
The Feminist War on Crime is a call to action to millennial feminists to define a new, anti-essentialist feminist script that rejects incarceration, embraces abolitionism, and seeks to improve the lives of all women (pp. 5, 192). Gruber offers the insight that prisons are no solution to domestic violence or sexual crimes. While people often wonder about the dangerous few when confronted with abolitionist arguments like hers, radical feminists of color have long been adopting alternatives for addressing gender-based violence without expanding the reach of state violence. Groups like INCITE!, Survived & Punished, Mijente, the Movement for Black Lives, and Critical Resistance adopt an intersectional approach to gender-based violence that acknowledges the related harm of state violence. They seek accountability for violence against women without depending upon incarceration. Feminists should more broadly embrace their strategies and techniques.
This Book Review proceeds in three parts. Part I describes the mainstream feminist approach to punishment through a discussion of the feminist script for punishment, which furthers a dominant narrative that promotes prosecution and incarceration as remedies for gender-based harms. Part II describes the harms of this feminist script, which has relied on racialized conceptions of victim, perpetrator, and punishment to expand the reach of punishment for gender-based crimes. Part III embraces Gruber’s call for feminists to reframe feminism and begins a discussion of how feminists can reject the feminist script for punishment in favor of a feminist script for healing and abolition. It discusses the activism and organizing of radical feminists of color of yesteryear and today. Part III articulates a path forward for feminists that addresses Gruber’s critiques of the current feminist war on crime. Gruber asks feminists to adopt a “neofeminist” approach that will “shift the winds so that feminism sails in the direction of greater justice” for everyone (p. 18). We can find such an approach in the work of these activists.
I. The Feminist Script
The Feminist War on Crime provides a comprehensive history of the relationship between feminism and mass incarceration. The book “examines historical feminist reform efforts to show that the connection between the feminist antiviolence agenda and incarceration is not natural, inevitable, or desirable” (p. 15). The Feminist War on Crime begins with an overview of the historical relationship between racism, puritanism, classism, and feminism in regulating domestic violence and rape.
Gruber’s historical analysis of the entanglement between feminism and incarceration illustrates that the feminist rage against the patriarchy has at times transformed into retributivist impulses to punish, which contradict feminist values and exacerbate social injustice.12 Gruber recounts several examples of feminist campaigns that advanced a feminist script for punishment. Many of these campaigns were motivated by the laudable aim of eradicating violence against women and improving women’s ability to lead safe and healthy lives. Gruber examines the “through the night” campaigns that sought to eliminate rapes on college campuses in the 1970s in Chapter Two. Chapter Three features the movement to expand legal recognition of the harms of domestic violence during the 1970s and 1980s. Chapter Four examines the feminist movement to abolish pornography and prostitution. Chapters Five and Six examine the more contemporary movements to address the harms of sexual assault on college campuses.
All of these campaigns within the feminist movement deal with different forms of actual or asserted harms against women. They occurred in different decades and had various leaders. But they all share a common script about punishment. They developed similar story lines about women. They painted victims and villains that look remarkably similar through the decades. They subscribe to the same dominant story about the role of the criminal law as a sword against perpetrators.13 While the individual characters in the script vary and are not always identical, many of the elements that advance their pleas for additional punishment are remarkably similar. These stories follow the same script.14
A. Defining the Feminist Script for Punishment
This section outlines the elements of this feminist script for punishment, which is the dominant narrative that feminists use to advance criminal governance for feminist causes.
1. The Victim. — A crucial element of the feminist script for punishment is the ideal victim.15 Gruber discusses the ideal victim in Chapter Four. The ideal victim is vulnerable and weak. She is often helpless and requires rescuing.16 She is an obvious she.17 She is the everywoman whose story can be a symbol for future advocacy to prevent others from enduring the same plight as she has endured. She is battered, raped, or beaten.18 She is innocent, never guilty.19 She cares about autonomy, but not so much that she allows other women to exercise theirs in ways that compromise her own.20 She is usually middle class, although implicitly, as demonstrated by her lack of concern about the material conditions that impact women from lower socioeconomic classes.21 She is just not worried about poverty.22 She is not worried about rent. She has a “pristine” face that communicates victimhood, which generally means that she is White.23 She cares about privileged spaces like college campuses and Hollywood studios, while fast-food restaurants and grocery stores are often afterthoughts to her.24 She does not have a complicated relationship with the perpetrator (pp. 14–15). She is merely a victim that needs to muster up the strength to walk away from the perpetrator.25 She is a Megan.26 She is a Jessica.27 She is a Jennifer.28 She is a symbol that the media cares about and will deify.29 She only wants sex when she has affirmatively stated so (p. 14). She doesn’t play games with sexual partners. She calls the police for help without worrying that they might mistake her for the perpetrator.30 When she sees the police, she feels relieved because she knows that someone is there to protect her. She is Farrah Fawcett when she played the part of a battered woman in The Burning Bed, which “became a symbol of the battered women’s movement” (p. 95). She is the everywoman.
2. The Villain. — The script also relies on the conception of an ideal villain.31 He is a perpetrator, and he is often a stranger.32 He is a dark, shadowy figure that lurks behind the bushes preying on innocent girls.33 He is the figure that women fear at night when walking home by themselves.34 He is a he.35 And he represents the patriarchy. He is the epitome of male domination over women.36 He may be privileged and entitled but is not always so. What is clear is his sense of entitlement over women’s bodies.37 He is a threat to all women, and he will repeat his conduct.38 He is an offender, and only an offender. He offends women’s respectability by exploiting their bodies, and he offends common decency.39 He should be treated like a pariah because he is not capable of redemption. He is merely a violent actor, and women should be warned about him. He is out to violate women’s bodies and will do so at any cost. He needs to be stopped and punished through all the tools available within the law. He is never a victim.40 He is not complicated. He is just evil. He is the pimp who trolls for underage girls to sell on the dark web.41 He is the rapist who is hiding in the bushes waiting for a weak woman to drag into the bushes for a violent rape. He is the drunk husband who routinely gives his wife black eyes and broken ribs. He is the villain, and criminal laws should punish him.
3. Racist Tropes. — The feminist script for punishment also selectively exploits racist tropes to serve its goals. The threat of Black criminality has been a common tool to galvanize support to criminalize conduct in the United States.42 Feminists advocated for harsher rape laws by warning about the dangers of “superpredators” during the 1990s.43 Criminologists wrongly claimed that there was a superbreed of teenagers who were a menace to society.44 Proponents of this theory claimed that superpredators were extremely violent and threatened the social order.45 When Linda Fairstein, the prosecutor in the “Central Park Five” case, and police rounded up a group of miscellaneous Black and Brown teenagers in response to a Central Park jogger’s rape, the media responded by sensationalizing the rape, not condemning the racial profiling.46 The teenagers were portrayed as dangerous and menacing in the popular media, and there was little concern about how these children were processed through the system. They were merely Black threats.47 The threat of Black men to White women is a key feature of a White supremacist society.48
The threat is not only to the virtuosity of the White woman and her body. It is a threat to White male patriarchal interests in the ownership of White women’s bodies.49 Their bodies are for White men’s consumption, making claims of rape against Black men particularly threatening to White masculinity. The exploitation of this threat is well known in a number of high-profile constitutional law cases. In the Scottsboro case of Powell v. Alabama,50 two White sex workers accused a group of Black teenagers of raping them rather than risk federal prosecution for engaging in immoral conduct.51 One of the women recanted her claims of rape, yet the Black boys were repeatedly convicted of rape in a series of trials.52 Collectively, they served 104 years in prison.53 Emmett Till was a fourteen-year-old boy accused of whistling at a White woman.54 As a result, a lynch mob murdered him in 1955 to protect the innocence of White womanhood.55 In the case of the “Central Park Five,” which involved the rape of a White woman, the media described the boys accused of her rape as “savages,” “animals,” “wolf packs,” and “wilding.”56 Clarence Moses-El spent twenty-eight years in prison for rape after a White woman claimed he raped her because she saw his face in a dream.57 When, after two decades of being incarcerated, Moses-El finally raised the money to have the DNA evidence from the crime in his case tested, police ignored a court order and threw away the DNA evidence before it could be tested.58 Nevertheless, a White woman’s bare assertion that a Black man raped her based on a dream was credible enough to sustain his incarceration.59 Although he was eventually released in 2015, his case demonstrates the power of the dominant narrative about Black men and White women. In May 2020, Christian Cooper, a Black man who was bird-watching in Central Park, asked Amy Cooper, a White woman, to put her dog on a leash. Upset by this request, Amy frantically called the police and claimed that she was being threatened by an “African American man.”60 By calling the police, Amy was deploying the techniques of this narrative to discipline Christian for stepping out of line. This story of the menacing Black man as a legitimate threat to White women is a key component of the feminist script for punishment.
B. The Feminist Script in Action
Early feminist campaigns reflect elements of the feminist script for punishment. In Chapter One, Gruber also describes how, from slavery to the Progressive Era, early feminist efforts to address rape relied upon depictions of White women as victims, emphasized the threat of Black men, and ignored the various forms of sexual violence that women of color experienced. For example, Gruber describes the early campaigns to eliminate sex trafficking in the early 1900s. These campaigns addressed the moral panic about White women engaging in prostitution and aimed to end “White slavery” (pp. 25–27). As a result of these White slavery campaigns, the White-Slave Traffic Act,61 or the “Mann Act,” was passed in 1910. The White slavery campaigns relied on racialized notions of sexual immorality that painted immigrants and people of color as threats to White women’s sexual purity.62 These campaigns against “modern day slavery” and “White slavery” suggested that, because White women were the victims, this new form of “slavery” was even more abhorrent than the actual enslavement of people of African descent. As Gruber explains, these campaigns relied on racist narratives that prevented racial solidarity amongst anti-rape activists:
One of the greatest barriers to racial and class solidarity within antirape activism was the growing concern with “white slavery” and the “new abolition” movement. At the turn of the century, as the older suffragists and abolitionists passed away, the agenda of temperance and equal rights gave way to stricter social purity movements. By the Progressive Era, 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. Although evidence was largely lacking that the women engaged in prostitution were physically coerced, the vision of enslaved young white girls gave the antiprostitution crusade an air of emergency and moral authority. (p. 27)
Contemporary sex-trafficking campaigns continue to rely on the feminist script for punishment. They often rely on images of young, White girls as potential sex-trafficking victims, and they often portray dark, shadowy threats as potential sex traffickers. The image below is the prototypical image for sex-trafficking campaigns. This image has been used on at least 556 websites, most of which focus on sex trafficking.
It depicts an innocent White girl who has been taken captive by an unknown, threatening man. She appears startled, which suggests that she does not know her captor. While the image is not intentionally racist, it exploits concerns about White female vulnerability to anonymous threats. The image is on countless posters and websites that invite the public to combat the threat of “modern day slavery.”63 The framing of sex trafficking as modern slavery intends to communicate the seriousness of the threat, equalizing it to chattel slavery in the United States. Ironically, the modern-day slavery campaigns tend to ignore that White supremacy was the underlying ideology that supported chattel slavery while leveraging White supremacist ideals about victimhood and racialized threats. The focus of these campaigns has been on increasing the law enforcement response to sex trafficking and increasing criminal penalties for pimps and johns as sex traffickers. But as Gruber notes, “the vision of enslaved young white girls” gives the campaigns a sense of urgency (p. 27).
As Gruber discusses in Chapter Two: “In the late 1970s, activists and students came together in ‘take back the night’ (TBTN) rallies to give voice to women’s shared fear of prowlers lurking in the dark. TBTN rallies often occurred after high-profile, if statistically rare, murders and rapes of women by strangers” (p. 43). As Gruber explains, these efforts to “take back the night” focused on security-oriented proposals that nonetheless bought into the narrative of vulnerable White women besieged by threatening strangers (p. 43). Likewise, Gruber documents the evolution of American domestic violence law through the 1980s to now, reflecting the troublesome commitment to punishment even when evidence indicates that punishment is ineffective at preventing domestic violence. Carceral domestic violence activists:
publicized a one-dimensional story involving sexist male officers influenced by chauvinist law and culture, who refused to arrest abusers because they believed that abuse was acceptable, the woman deserved it, or the matter was personal. Police empathy for abusers, the story went, remained unmitigated even when the woman was beaten and bloodied. This narrative defined nonarrest as an exercise of sexism, so that every arrest was an instance of gender justice, regardless of the consequences. In turn, violent male police officers using violent arrest to control violent men was not a pathology of a ‘fascist’ state. It was feminist. (p. 70)
Gruber further provides an illustrative example of the contradictions within carceral feminism64 through the Brock Turner case (pp. 178–90). As is already well known, Brock Turner was a Stanford University student, and his conviction for sexual assault became a symbol for campus sexual assault.65 On January 18, 2015, Brock Turner sexually assaulted Chanel Miller while she laid unconscious outside the Kappa Alpha fraternity house on Stanford’s campus.66 Two graduate students passed the scene and observed the sexual assault in progress.67 They apprehended Turner and called the police, who arrested him.68 Turner was convicted of assault with the intent to commit rape of an unconscious person, sexual penetration of an unconscious person, and sexual penetration of an intoxicated person.69 He faced a maximum sentence of fourteen years in prison.70 Turner’s sentencing judge, Judge Aaron Persky, sentenced him to six months in the county jail and three months of probation, as recommended by the Probation Office (p. 180). Turner was also required to register as a sex offender for the rest of his life. This sentence was widely criticized as being too lenient. Turner was transformed into the prototypical predator. Judge Persky was accused of being biased toward the privileged Turner, whom detractors claimed reminded Judge Persky of himself (p. 185). However, Judge Persky routinely followed the recommendations of the Probation Office (p. 185).
Initially, carceral feminists portrayed Judge Persky’s lenient sentence as a threat to women.71 They claimed that he was unable to deliver the sort of justice that victimized women deserved (p. 181). He, like Turner, became a villain in the story of women’s equality. And soon his portrayal as a threat to women’s equality meant he was also a threat to racial equality. Carceral feminists claimed that the Turner case reflected both a disregard for the seriousness of sexual assault, and the disproportional nature of justice in this country. Feminists, led by Professor Michele Dauber, searched for evidence that Judge Persky was less lenient when there were Black or Brown defendants in his courtroom (pp. 179–83). This claim exploited concerns about the unequal nature of justice in the criminal system to galvanize support for Judge Persky’s removal. However, Judge Persky was a judge who consistently granted lenient sentences — or rather sentences that appear lenient within a system with excessively lengthy sentences.72 He generally followed the recommendations of the Probation Office (p. 185). Public defenders supported him during this challenge, concerned that his removal would contribute to the “culture of mass incarceration [that] has warped our psyches into thinking that lengthy jail or prison terms are always the answer to criminal behaviors.”73 Nevertheless, Judge Persky was ultimately removed from the bench,74 and he was ordered to pay over $161,825 in legal fees to Professor Dauber’s campaign.75 But the question remains whether this removal reflects justice for feminism.76 Is the removal of a judge who consistently sentences within the recommendations of the Probation Office consistent with the progressive goals of social justice?
This case and others like it prompted Gruber to write this book, which builds upon a body of scholarship that critically examines the connections between race, gender, and punishment.77 Gruber’s prior experiences as a public defender contextualize her unique insights about the harms of the criminal system. The Feminist War on Crime lays bare the tensions between seeking punishment for harms against women within a system that is stacked against marginalized communities. It is a tension that has long resided within the feminist movement but is especially important given the collective recognition that mass incarceration is one of the most important problems for this generation to address.78 Judge Persky’s recall undermines efforts to encourage judges to mitigate the collateral consequences of the criminal system.79 The outrage about Turner’s conduct may have been warranted because he harmed another person. But should the outrage against his conduct automatically translate into the punishment of every person that happens to be connected to his criminal case?
The Feminist War on Crime diagnoses the harms of the feminist script for punishment. While the goal was to improve the lives of women by criminalizing harmful conduct, mass criminalization has contributed to the breakdown of communities and promoted a narrative that is both racist and patriarchal. The suggestion that women are always victims who are waiting for the criminal law to rescue them feeds into tropes about the helpless nature of women that are core to patriarchy. It fits within that paradigm and has been so successful, in part, because it complies within the existing dominant narratives about the nature of women in need of rescuing. The script leans into these narratives that might later be used to limit women’s rights. As Bernstein has noted, this narrative locates:
social problems in deviant individuals rather than mainstream institutions . . . [and] seeks social remedies through criminal justice interventions rather than through a redistributive welfare state, . . . advocat[ing] for the beneficence of the privileged rather than the empowerment of the oppressed. As such, this approach leaves intact the social structures that drive low-income women (and many men) into patterns of risky migration and exploitative informal sector employment, including those relatively rare but very real situations that would rightly qualify as “trafficking” or “slavery.”80
As Gruber notes, this narrative ultimately contributed to the “prosecutorial achievements of second-wave feminism[, which] are numerous and include mandatory arrest and no-drop prosecution for domestic violence, criminalization of nonforcible sex, and prosecution-favoring evidentiary rules” (p. 44). This book invites feminists to interrogate foundational questions about the methods and goals of feminism and to reevaluate the dominant feminist script, which has advanced the goal of punishment over improving the material conditions of women.
II. The Harms of the Carceral Feminist Approach
The feminist script for punishment relies on stereotypes about women, men, race, and sexuality and has not allowed for more nuanced analyses of the intersectional systems of oppression. As Gruber states: “There is a deeply ingrained American punitive impulse, originating from the media and government’s relentless focus on horrific criminality, that leads even progressive incarceration critics to advocate for strict prosecution of those whom they see as the worst of the worst” (p. 9). The effectiveness of carceral feminism has been due to its reliance on racist and sexist stereotypes.81 It does not allow for a complicated analysis of the differing forms of oppression that women encounter and the ways that these systems of oppression intersect and diverge.82 That level of nuance slows down the media spectacle and moral outrage that spark carceral impulses. As Professor Patricia Hill Collins states, intersectionality provides the “critical insight that race, class, gender, sexuality, ethnicity, nation, ability, and age operate not as unitary, mutually exclusive entities, but as reciprocally constructing phenomena that in turn shape complex social inequalities.”83 Professor Kimberlé Crenshaw explains:
Where systems of race, gender, and class domination converge, as they do in the experiences of women of color, intervention strategies based solely on the experiences of women who do not share the same class or race backgrounds will be of limited help to women who because of race and class face different obstacles.84
In reality, many victims do not fit within the mold of the ideal victim. Many women do not want the State to intervene in their lives because they do not trust government actors.85 Black, Brown, Indigenous, and other women and queer people of color are accustomed to police who racially profile, stop and frisk, and harass their communities.86 Feminists from these communities long warned about the harms of relying on punishment to achieve feminist goals.
A. The Black Feminist Resistance
Many women who face intersectional subordination do not want additional entanglement with the carceral apparatus. Immigrant women, especially undocumented women, may be concerned that interactions with the police will eventually lead to deportation.87 All women, including queer women, may be both victims and perpetrators of violence against women.88 Likewise, many perpetrators are also victims.89 They are not unidimensional villains who repeatedly prey on women.90 Most of them will not offend again.91 They are not all men. Carceral feminists overlook many factors that complicate their desire to express their disapproval of gender-based violence, often to the material degradation of women who do not fit within the classic feminist mold of White, middle-class women.92 Gruber discusses how feminists of color resisted carceral tactics:
Feminists of color, like [Shelly] Fernandez and [Bok-Lim] Kim, had argued vociferously that minority women were differently situated from middle-class white women, had different views of racism and sexism, and existed in a different relationship with the state. Black feminists were particularly resistant to policing as a response to minority women’s problems. Nevertheless, much in the way antipatriarchy feminists insisted on the everywoman argument, many legal feminists doubled down on their commitment to law enforcement . . . . (p. 62)
In fact, Black feminists long warned about the harms of incarceration. They recognized the importance of an intersectional analysis that considers the harms of the carceral system and the importance of improving the material conditions of women of color. As Gruber discusses in Chapter Two, Black and Brown feminists challenged the punitive approach they noticed within the domestic violence movement (pp. 52–53). In 1977, the Combahee River Collective, a collective of Black women feminists, published a collective statement about their political commitments.93 They stated:
One issue that is of major concern to us and that we have begun to publicly address is racism in the white women’s movement. As Black feminists, we are made constantly and painfully aware of how little effort white women have made to understand and combat their racism, which requires among other things, that they have a more than superficial comprehension of race, color, and Black history and culture. Eliminating racism in the white women’s movement is by definition work for white women to do, but we will continue to speak to and demand accountability on this issue.
In the practice of our politics, we do not believe that the end always justifies the means. Many reactionary and destructive acts have been done in the name of achieving “correct” political goals. As feminists, we do not want to mess over people in the name of politics.94
The Combahee River Collective called out the racism within the mainstream feminist movement.95 As Richie notes:
Some aspects of the work to end violence against women have benefited from the ideological shifts associated with the buildup of America’s prison nation. These “benefits” include harsher punishments for so-called violent perpetrators, technological advances to monitor threatening and illegal behavior, and a fundamentally conservative public commitment to “law and order” that does not take into account the roles that families play in social stability.96
In 1977, the Santa Cruz Women Against Rape published an open letter to the anti-rape movement to contest its reliance on prisons and prosecution:
We, the members of Santa Cruz Women Against Rape, are writing this letter because we are concerned about the direction the anti-rape movement is taking. . . . [W]e would primarily like to address the issue of the relationship of the anti-rape movement to the criminal justice system. . . . We do not believe that rape can end within the present capitalist, racist, and sexist structure of our society. . . .
. . . .
. . . Attempts at “good relations” with the criminal justice system have served to co-opt our movement, and have led to the belief (or hope) that the criminal justice system can solve the problem of rape. Yet, the sexist and racist nature of the criminal justice system only makes the problem worse.
We are opposed to the criminal justice system orientation of many anti-rape groups for a number of reasons.97
These open letters to the mainstream feminist movement illustrate that various feminists recognized the harms of a carceral approach to feminism before many of the excesses of the feminist war on crime occurred.
Despite these warnings from various feminists since the 1970s, the hunger for punishment became a defining feature of carceral feminism. In the Introduction, Gruber tells the story of one of her cases as a public defender (pp. 1–5). Her client, Jamal, was charged with domestic violence after a dispute with his partner, Britney. Despite calling the police on Jamal, Britney had concerns about moving forward with the case. Jamal and Britney shared a child and were living together in the Lincoln Heights housing project. A young female advocate on the case instructed Gruber not to communicate with Britney and proceeded to prosecute Jamal over Britney’s protests. The young family was considerably worse off because of the prosecution. Britney and Jamal remained together but struggled to pay for a baby and an apartment they ultimately lost because of Jamal’s conviction. The case initiated a series of cases that they would have to face through the years, none of which was for domestic violence and all of which exacted an immense toll. While feminists vigorously advocated for mandatory arrests and prosecutions for cases like this, it is not entirely clear that this outcome was the best one. As Gruber discusses, solutions that address the material concerns of the family, such as the provision of living wages and affordable housing, would have gone a long way to improving the conditions that exacerbate domestic violence (pp. 194–95). This case illustrates that there appears to be a major disconnect between feminist advocacy and feminism’s articulated goals.98 Punishment is unable to realize a feminist vision that improves the lives of women in a meaningful way.
Along the path to women’s equality, the urge to punish and shame has taken priority over materially improving the lives of all women.99 One might presume that gender equality could be measured by the amount of punishment that a carceral feminist is able to secure for a given act of violence against women.100 Each year in prison is equivalent to a unit of dignity and value within a woman’s life.101 So leniency in this context is the language of patriarchy.102 The system is too lenient, and any suggestion that leniency is ever appropriate fails to feed into the moral outrages that carceral feminists benefit from.
B. Expression over Materiality
The Feminist War on Crime convincingly argues that carceral feminists have largely ignored the harms of punishment by emphasizing the importance of the law’s role in declaring communal values through the expressive function of criminal law (p. 107). Legal philosopher Joel Feinberg argued that criminal law plays an important role in expressing the values of a community.103 By criminalizing conduct, the community expresses its collective morality.104 Feminists have adopted expressive arguments about the criminal law to argue about the importance of “sending a message” that a specific type of conduct is harmful by criminalizing that conduct (p. 107). However, expressive theories of the law rarely acknowledge that there are multiple publics, with varying degrees of power and access to the deliberative process of determining what is moral and acceptable. This neglect means that criminal law’s expressive value is limited by the systemic marginalization and isolation of entire communities from full political participation.105 These communities often are those same communities most harmed by the very act of criminalization.106 As a result, elite members of the public get to proclaim the community’s values and then facilitate which people can be arrested and placed in cages for failing to comply with these communal values. An even more skeptical account suggests that the exclusion of marginalized community members from the deliberative process is intentional or a core feature of the process of making criminal law, because social elites perceive marginalized people as threats. So expression is merely another tool for subordination.
Nevertheless, feminists have been wielding the power to express themselves through punishment. Unfortunately, the harms of criminalization are generally an afterthought in the attempts to wield the criminal law as a sword against the perceived threat of patriarchy. The law’s power to punish and express that certain conduct is immoral has taken precedence over the law’s role in reproducing White supremacy, ableism, and economic subordination. Expression and the symbolism of punishment have been the paramount goal within carceral feminist movements to punish away threats to women.107 The importance of sending a message about violence against women has erased the violence of the criminal legal system itself.108
As feminists have utilized the expressive function of criminal law, they have found strange bedfellows in social conservatives (p. 102). With regard to domestic violence, feminists have advanced the use of the penal system to punish men who engaged in domestic violence. The system has contributed to the use of coercive tactics to force victims to testify against the accused even when they prefer not to do so.109 It has contributed to the breaking up of families.110 With regard to sex work, radical feminists have partnered with social conservatives to abolish pornography and prostitution.111 They have advocated for the criminalization of pornography because it represents violence against women and have called for the prosecution of johns and pimps as sex traffickers.112 They paint a grim picture of sex work and rely on loose data and hyperbole to present the most terrifying accounts of the industry as representative of sex work.113 Social scientists have widely criticized the problematic manipulation of unreliable data that radical feminists advance as serious research.114 Nevertheless, these provocative accounts have been influential in advancing the story of universal victimhood within the sex trades.115 Pimps are terrible men who should be criminalized like sex traffickers.116 Sex-work clients are exploitative johns who manipulate women and who are sex traffickers.117
For example, in December 2016, the National Organization for Women (NOW), a preeminent feminist organization,118 wrote a brief opposing the decriminalization of sex work, based on heteronormative arguments about the sanctity of marriage and procreative sex.119 The brief suggested that traditional relationships should be protected120 and made no mention of race, class, or the obvious harms of the criminal legal system that stem from criminalizing sex work.121 It didn’t even claim that sex workers’ conduct should be decriminalized while clients’ conduct remains criminalized.122 Instead, these feminists fought for the carceral system.123 This organization had diverse women at its founding,124 but somewhere along the way it has prioritized the interests of White, middle-class women although it remains committed to the optics of inclusiveness and diversity. Like many feminist organizations, it has failed to prioritize intersectional analysis to the extent of allowing it to shift priorities, abandon previous commitments, and acknowledge the harms of former techniques. Instead, the commitment to punishing sex work has allowed NOW to adopt arguments that would be harmful to many of the women its leadership claims to protect. Queer women or women who choose not to have children may have relationships worthy of less constitutional protection if NOW’s legal arguments about the special value of procreative sex are taken seriously. As for its conception of sex work, there are no sad, lonely women and men who choose to pay for intimacy. Only predators, and more punishment is needed to punish them — even if it means a few women need to be thrown in jail along the way. But, as Gruber highlights in the book, these alliances with socially conservative groups undermine the values that many feminists claim to hold dear (pp. 102–03).
Although it is not clear that criminal expression was the most appropriate mode of realizing the goals of feminism, the symbol of criminalization has come to represent success even when criminalization is unable to achieve the goal of improving the lives of women — the presumed goal of feminism. The material conditions that lead to domestic violence for poor women, such as lack of employment or affordable housing, are the same or worse for many women.125 Women have experienced some of the worst harms of the feminist war on crime, including loss of familial income, disruption to support networks following intense surveillance and policing of marginalized communities, and surveillance under the family regulation system. These harms should matter to all feminists. They should be centered in discussions about strategy and political tactics.126 Too often, the voices that can reflect on these issues are excluded from the exclusive strategy conversations within feminist circles, or they are ignored when they are present.127 When feminists express viewpoints that counter aspects of the feminist script for punishment, they are demonized as enemies to the cause or portrayed as mind-controlled victims of patriarchy.128
Admittedly, feminist activism has improved the lives of women throughout the United States and worldwide, contributing to better workplaces, home lives, and political lives for women.129 Through this activism, women have achieved the right to vote.130 The culture of the workplace has fundamentally shifted into a space that is more welcoming of women.131 The harms of domestic violence are well known, and the private spaces that women have historically occupied have been granted the same protections as other spaces.132 Overt discrimination is prohibited,133 and the harms of campus sexual violence are notorious. Nevertheless, feminists have tended to fall short by adopting strategies that are harmful to many women and by failing to center and prioritize intersectional frameworks in their analysis that would have made their strategies inclusive. Accordingly, the gains of feminism have primarily accrued to White elites at the top of the feminist order.
III. A New Feminist Script
The implicit question throughout The Feminist War on Crime is what feminism should be. This is a crucial question given the various internal and external struggles that feminism has endured over the past several decades. Struggles remain about the treatment of sex work, the priorities of the movement, and the entrenchment of White supremacy within the feminist movement. It is not entirely clear what the aims of the feminist movement should be. Should it be a movement for all women? Is it possible for it to be a movement for all women? Should the feminist movement be satisfied with attempts at including different women without engaging with how these different women might redirect current activism? How should the feminist movement contend with the growing concern about mass incarceration that many feminists, especially Other feminists, have? Should feminists favor expressions of gender equality through criminal laws even when the expression is likely to contribute to the racial profiling and criminalization of the least powerful communities? Can gender justice come through the criminal law?
Gruber seeks to answer these questions about what feminism should be with her thorough examination of its failings, illustrating the disconnect between feminist advocacy and feminism’s articulated goals. By connecting the feminist war on crime that relied on criminal punishment to communicate gender equality to the wars on crime and drugs, she uncovers the culpability of the feminist agenda in promoting mass incarceration. The harms of mass incarceration are well documented, but there has not been robust engagement with the ways that feminism is implicated in promoting narratives and criminal laws that have contributed to the problem. This is the novel contribution of Gruber’s book.
A. A Call to Action
At the outset of The Feminist War on Crime, Gruber makes an appeal to millennial women, women who are forming their feminist identities and learning about the path to women’s equality (p. 5). Part of Gruber’s appeal responds to feminist activism on college campuses regarding sexual assault (p. 8). This activism mirrors aspects of the feminist script for punishment that has prioritized expressive punishment. There is a tension between advocacy to address the harms of mass incarceration and racist policing, and demands for more police and imprisonment for gender-based crimes.134 This tension between the call for more punishment and the call for social justice needs to be taken seriously in order to advance a movement that is sensitive to all the women within it, including the many women of color who do not view the criminal system as a source of protection and care. Millennial feminists may already be sensitive to the role of race, poverty, and other forms of systemic oppression that impact how to think about feminism.135 Further, millennial feminists may be open to thinking about success and advocacy in ways that move beyond punishment to address social issues. It may be time to transform the feminist endeavor into one that recognizes the harms of the criminal system rather than one that leans into them. Accordingly, The Feminist War on Crime is an important intervention as young activists are torn between calls to end mass incarceration and the #MeToo movement’s exposure of sexual misconduct. The exposure of male sexual misconduct felt like a heroic endeavor as the movement was developing. But the accompanying call for more crimes and criminalization is a problematic move that fails to adequately consider the shortcomings of the criminal law.136
The next wave of feminist activism should seriously consider the benefits of an abolitionist stance toward criminal law that recognizes that criminalization creates more harms than the harms that it seeks to redress.137 Professor Dylan Rodríguez describes abolition as “a practice, an analytical method, a present-tense visioning, an infrastructure in the making, a creative project, a performance, a counterwar, an ideological struggle, a pedagogy and curriculum, an alleged impossibility that is furtively present.”138 Abolitionism recognizes the harms of the criminal system and looks beyond it to address social problems. Instead of seeking ways to punish more people and send more messages about what society will not tolerate, perhaps feminists should consider new modes to advance a feminist vision of the world. Gruber invites feminists to engage in a radical reimagination of what feminism should do and the world in which it should exist — a “neofeminism” (p. 17). It is a forward-thinking feminism of the future. Shifting away from punishment may provide the space to imagine a world that reflects the goals of feminists. Instead of singularly focusing on protecting women from external harms, it can shift to preventing harms.139 This approach requires examination of the social features and benefits that might make being a woman easier. It requires a focus on the material conditions that would improve the lives of women (p. 18).
The Feminist War on Crime describes the manners in which punishment has been confused for accountability and argues that accountability need not solely or primarily be concerned with punishment. This reclamation of the possibility of visionary goals does not circumvent serious discussions about accountability. Instead, the book demonstrates how punishment has been confused for accountability, and expression has been confused for materiality (p. 180). Meting out punishment and long sentences for gender-based crimes has been championed as a feminist victory and an example of ensuring that villains do not get away with their crimes. However, accountability should not solely, or primarily, be concerned with punishment.140 Accountability requires actors to take responsibility for their actions and to account for the harms that they have created.141 Conflating accountability with punishment has obscured the various ways that a wrongdoer may be held to account for their conduct. For example, there are many possibilities to “call in”142 people for their wrongdoing and to address community harms responsibly through transformative justice and restorative justice programs.143 Research suggests that crime victims find these processes more satisfactory than they find the typical criminal legal process.144 These processes provide mechanisms for holding wrongdoers accountable while avoiding the spectacle of criminal proceedings.145 They are focused on the experience of crime victims and allow for all participants to heal during the process, allowing for a mechanism for accountability that is truly in line with early feminist acknowledgments that a feminist account of the law allows for caring and empathy.146 Feminist forms of accountability can reflect these values.
B. A Feminist Script for Inclusion
Furthermore, millennial feminists should interrogate who the women that their feminism seeks to protect are. The protagonist in the current feminist script does not reflect the values of an inclusive feminism. The ideal victim is not an immigrant.147 She is not queer.148 She is not Black.149 She is not Indigenous.150 She is not poor. She is not caught in the interstitial web of inequality that makes womanhood just one of many factors that contribute to the precarity of her life. She doesn’t worry about losing her child to the family regulation system as social workers racially profile her as an incompetent mother.151 She doesn’t worry that the police will shoot her in her own home.152 She does not worry about losing her welfare benefits because of failing to comply with demands from prosecutors to put her children’s father behind bars.153 The ideal victim does not worry about ICE raiding her home and deporting her once the police intervenes in her domestic violence case.154 Her life is not complicated by the extensive system of state surveillance in poor Black, Indigenous, and other communities of color. The ideal victim complies with the narratives that feminists tell about her story, and if she doesn’t, she is a victim of her own oppression.155 She is not concerned about the state’s indifference to her suffering because she does not have the burden of centuries of state regulation of her family life, separation from her children, sexual assault of her body, and dispossession of her property in her blood.156 She is untainted by the savagery of White supremacy.157 She is not transgender.158 She is not nonbinary.159 She is not a sex worker. For her to be anything but a caricature that fits into the neat feminist script complicates the everywoman narrative that carceral feminists exploit to justify the expressive value of their punitiveness.160 To require nuance is to compromise the need for the decisive and harsh consequences that they claim are beneficial for all women. Millennials should reject the feminist script for punishment and embrace a new feminist script that embraces and centers these women.
If feminism is to become a big umbrella that intends to protect all women, then a contextualized movement that acknowledges the harms of incarceration should be mandatory, not optional. The lives of all women cannot be improved by punishing our way out of harm. While the feminist carceral war has won the narrative war against gender-based violence in many respects, it has not won gender equality for all women. The feminist war on crime has exacerbated the precarity of many women’s lives and has brought additional forms of surveillance to their communities.161 It has been punitive and has failed to acknowledge its role in furthering White supremacy.162 As Gruber makes clear, the reliance on a racist system automatically excludes many women from protection. Black and Brown women have been subjected to scrutiny under the family regulation system after reporting a partner for domestic violence.163 They have been forced to testify against their partners with threats of losing their children and government benefits. Immigrant women have been deported following mandatory arrests of their partners.164 They have been separated from their children. Poor women who engage in sex work have been subjected to multiple arrests.165 Black trans women have been profiled as sex workers while walking on the streets of Des Moines and Newark, and they have been wrongfully arrested on multiple occasions.166 The policing of women and the disciplining of their compliance with gender norms have only intensified with expanded criminalization. While these laws may have been well intentioned, they have nevertheless been harmful to countless women who see the carceral system as inherently violent.
C. An Intersectional, Inclusive, and Noncarceral Feminist Movement
The good news is that there is already a past and present feminist social movement that provides a blueprint for an intersectional, inclusive, and noncarceral feminist movement. Critical Resistance, an organization dedicated to ending the prison industrial complex, was formed in 1997 after activists challenged the use of prisons and police to address social, economic, and political problems.167 That group organized a conference that “over 3,500 activists, academics, former and current prisoners, labor leaders, religious organizations, feminists, gay, lesbian and transgender activists, youth, families, and policy makers” attended.168 INCITE! is a feminist organization that centers women, gender-nonconforming, and trans people of color, and has been at the forefront of noncarceral responses to community harms and interpersonal violence. The organization “recognizes that it is impossible to seriously address sexual/domestic violence within communities of color without addressing these larger structures of violence, such as militarism, attacks on immigrants’ rights and Indian treaty rights, the proliferation of prisons, economic neo-colonialism, and the medical industry.”169 Richie notes that “Black feminists addressed issues of community violence and harm caused by state policy”170 and described domestic violence in connection to “community and social conditions that link intimate partner violence much more closely to public policy and community violence.”171
INCITE! and Critical Resistance issued the Statement on Gender Violence and the Prison Industrial Complex in 2001, acknowledging:
The various alternatives to incarceration that have been developed by anti-prison activists have generally failed to provide sufficient mechanism[s] for safety and accountability for survivors of sexual and domestic violence. These alternatives often rely on a romanticized notion of communities, which have yet to demonstrate their commitment and ability to keep women and children safe or seriously address the sexism and homophobia that is deeply embedded within them.172
The statement recognizes the harms of an approach that relies on incarceration and prisons to address violence while also recognizing that antiprison activists need to provide concrete strategies to protect survivors of violence:
It is critical that we develop responses to gender violence that do not depend on a sexist, racist, classist, and homophobic criminal justice system. . . . To live violence free-lives [sic], we must develop holistic strategies for addressing violence that speak to the intersection of all forms of oppression. . . . However, the mainstream anti-violence movement has increasingly relied on the criminal justice system as the front-line approach toward ending violence against women of color. It is important to assess the impact of this strategy.173
Both INCITE! and Critical Resistance have developed strategies to address gender-based harm and hold harm-doers accountable. One example is Community Accountability, which is “a community-based strategy, rather than a police/prison-based strategy, to address violence within our communities. Community accountability is a process in which a community — a group of friends, a family, a church, a workplace, an apartment complex, a neighborhood, etc[.]” — defines community values and develops strategies for addressing community members’ abusive behaviors and processes for holding them accountable.174 INCITE! provides resources on community accountability, transformative justice, and restorative justice that address the question of what to do when someone harms others.
Creative Interventions similarly developed a toolkit for facilitating accountability measures during a violence intervention.175 Taking accountability is:
based upon the belief that communities working together can overcome violence, and the vision that each of us as individuals are capable of meaningful change towards that end. Our vision of accountability as a process or as a staircase of change means that we value any step leading towards the end of or reduction of violence and that we also see each small step as one that can lead to our bigger vision of community well-being and, ultimately, liberation.176
Advocates Mariame Kaba and Shira Hassan published a workbook, Fumbling Towards Repair, which provides facilitation guidance on responding to harm and encouraging people who inflict harm to take responsibility.177
Much of the focus of transformative justice and community accountability is on restoring the survivor of harm and addressing the political and social conditions that promote violence and harm. This may look like community members providing mutual aid to the victim or other forms of support to address their harms. The process for holding people accountable for violent behaviors may differ from community to community. Nevertheless, INCITE! has outlined several of the elements that communities may adopt to hold people and/or organizations accountable for violent attitudes and behaviors:
a) Acknowledge the abuse. Create an accountability process where the oppressor/abuser fully understands [and] acknowledges the abuse (as specific acts and patterns and their political implications) without excuses, disclaimers, denials, minimizations, or victim-blaming.
b) Acknowledge the consequences of abuse. . . .
c) Make reparations. Create an accountability process where the oppressor/abuser makes sincere and meaningful reparations which can include a full public apology, payment for damage, payment of debts, behavioral changes, counseling, leaving the organization, political education for self and towards others, etc.
d) Make long-term, permanent change.178
Community-based strategies are important because many women, especially women of color, end up incarcerated when police intervene in domestic matters. The organization Survived & Punished seeks to support these women. As the organization describes:
The Survived And Punished Project demands the immediate release of survivors of domestic and sexual violence and other forms of gender violence who are imprisoned for survival actions, including: self-defense, “failure to protect,” migration, removing children from abusive people, being coerced into acting as an “accomplice,” and securing resources needed to live.179
It is also important to recognize that there is already a burgeoning millennial, feminist movement that is intersectional, noncarceral, and committed to social justice. This movement is reflected in Black Lives Matter, an organization founded by Black, queer women that is decidedly feminist in its approach and commitment to recognizing the unique harms of intersectional forms of subordination.180 The platform for the broader coalition of organizations that support Black people, the Movement for Black Lives, has embraced the decriminalization of sex work, support for affordable housing and equal education, and the elimination of the carceral war on Black people.181 The platform for the Movement for Black Lives states:
In order to fully achieve the Vision for Black Lives, it is essential to center the experiences of Black women, girls, trans, intersex, and gender nonconforming people, and to understand the ways in which imposition and internalization of cisheteropatriarchy has fueled multiple forms of racialized gender-based violence against and within Black communities.182
The platform makes the following demands to “end the war on Black women”:
Interrupt and end criminalization and deportation of Black women. Develop and support non-criminalizing and non-coercive, voluntary, accessible, harm reduction-based and trauma-informed responses to unmet mental health needs, drug use, involvement in the sex trades, survival theft, and community and interpersonal violence. . . .
Ensure that Black women have access to resources that will enable them to escape and avoid interpersonal and community violence, including living wage employment . . . .
Ensure full access to comprehensive sexual and reproductive health care and eliminate discriminatory barriers to health care for all people.
Eliminate the foster system’s power to permanently and irreversibly destroy Black families through termination of parental rights.183
Likewise, Mijente is a member organization that is “a political home for Latinx and Chicanx people who seek racial, economic, gender and climate justice.”184 It has declared: “[O]ur cause isn’t just pro-Latinx, it’s pro-Black, pro-indigenous, pro-worker, pro-mujer, pro-immigrant, and pro-pachamama, and . . . prioritize[s] building social movements across place, peoples and issues.”185 These organizations often are not conceptualized as feminist organizations, but they are decidedly feminist in their embrace of gender equity and commitment to improving the lives of women who were historically excluded from mainstream feminist organizations. These organizations are not single-issue organizations because their people do not live single-issue lives. These organizations also share a legacy with organizations from prior generations that organized to eliminate carceral responses to gender-based crime. It is therefore important to center them in feminist discourses and recognize them as feminist organizations.
D. The Urgency of the Call to Action
The Feminist War on Crime illustrates why feminists should acknowledge the role of class and race in distorting who and how people are punished within the criminal system. Punishment may send a message through the feminist script. However, as Gruber states, the prison is “a primary site of violence, racism, and degradation in society” (p. 1). The message feminists are sending is a White supremacist message. It is a message that, above all, signals that our willingness to punish takes precedence over protecting women of color. It openly adopts the tools of the master and expects women of color to comply with a system that they know to be racist. It fails to acknowledge the role of intersectionality in creating systemic forms of subordination that make some women’s lives precarious in ways that differ from the precarity of other women’s lives. The women from Survived & Punished, who have been arrested after experiencing gender-based violence, are familiar with the harms of the criminal legal system.
Therefore, Gruber’s suggestion to look beyond the criminal system for justice is not a utopian ideal that ignores the importance of accountability (pp. 197–99). It is a matter of necessity for the poor, immigrant, Indigenous, and disabled women who live in fear of the criminal system and the surveillance and violence that it constantly brings within their lives. Moving beyond punishment is a move to realize a liberatory ideal where women’s needs are satisfied and feminists avoid the harms of an unjust criminal system. Professor Carol Gilligan imagines the ways that women could make the law more empathetic.186 Rather than relying on the values of individualism and efficiency, the law might embrace the values of caring and empathy. Gilligan argues for an “ethic of care” in the law and imagines the ways that this value would ultimately lead to more just outcomes.187 This ethic of care would not have to fall solely on women to promote but could be a framework for everyone to embrace.188 Groups like INCITE!, Critical Resistance, Mijente, Creative Interventions, the Movement for Black Lives, and many others led by women of color provide concrete examples and resources, which embrace a mode of accountability that does not rely on police or prisons and which are instructive for promoting a nonessentialist, noncarceralfeminism.
The Feminist War on Crime is a timely call for feminists to reckon with the harms of the criminal institutions they helped to build. Ultimately, Gruber is asking for a new wave of feminism that prioritizes material gains for all women over expressive protection for the elite few. Sending messages about what feminism will tolerate should not be confused with improving the lives of all women. Punishing people who are painted as villains taps into the retributivist impulses in this society. But these retributivist impulses are inextricably connected with racism, classism, and ableism. The very color of blame is painted on Black faces, and the carceral feminist agenda has benefited from the White supremacy within the criminal legal system. By tapping into society’s urge to protect White female fragility and the concomitant desire to punish Black or Brown male criminality, feminism has been a co-conspirator in the mass incarceration and mass criminalization agendas. The key lesson from Gruber’s book is that instead of punishing our way into good governance, feminists should define new modes for accountability and devote energy toward the provision of resources that actually improve the lives of women. As Gruber argues, now is the time for millennial feminists to move away from punishment (p. 192).
Furthermore, it is time for vanguard feminists to consider how they have directly or indirectly contributed to the logics of the feminist script for punishment. More experienced feminists should be willing to consider the harms of their past work and be responsible for how their work may have contributed to the punitiveness of the system. It is not enough to adopt a superficial racial analysis of inclusion that does not deeply engage with the intersectional framework that Black feminists and other feminists of color have been developing. Shallow references to diversity and inclusion, and footnotes about intersectionality and “feminists of color” are also inadequate. I believe that seasoned feminists and feminist organizations should be willing to engage with the work of groups like INCITE! and Survived & Punished. They should be open to reorienting their arguments and strategies in ways that might feel uncomfortable. They should change their existing priorities, so as to accommodate new frameworks and forms of engaging in feminist advocacy that truly lead to a feminism that is also diverse and inclusive in substance, not just in symbols and through the deployment of relevant catchphrases and website imagery. This new feminism requires an openness to prioritizing intersectionality, rather than shallow mentions of a commitment to antiracism in response to accusations of racism. These vanguard feminists, and feminist organizations, should plan to make reparations for the harms that the feminist script for punishment has inflicted upon marginalized communities by furthering a new feminism that reimagines care, accountability, and possibility.
* Associate Professor of Law, Delaware Law School. I am grateful to Jamelia N. Morgan and Ngozi Okidegbe for thoughtful comments on an earlier draft, and to Marisa Piccareto for careful research assistance.