Expanding Incarceration Is Not the Best Way to Fight Rape Culture

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The scene at Stanford University's 2016 commencement.
Photo: Gabrielle Lurie/AFP/Getty Images


Earlier this year, Stanford University student Brock Turner was sentenced to six months in jail for raping an unconscious woman behind a dumpster. In justifying a sentence far shorter than the six years sought by the prosecution, Judge Aaron Persky cited the “severe impact” and “adverse collateral consequences” a lengthy prison term would have on the young man. To many observers, this extension of compassion toward Turner served to devalue the suffering of his victim, who detailed the “adverse consequences” of his crime in a heartrending letter that was published by BuzzFeed and read by millions.

The ensuing outrage fed a movement to remove Judge Persky from the bench and to eliminate the distinction in California law that allowed Turner to escape a three-year mandatory-minimum sentence for his assault. That movement has proven successful.

After over 1 million people signed an online petition demanding Persky be recalled, the judge filed a request last week to be transferred to civil court, where he will no longer have the power to sentence criminal defendants. Then, on Monday, California lawmakers passed a bill mandating prison time for the act of raping an unconscious or incapacitated victim. Previously, minimum sentencing was reserved for instances in which a rapist overpowered a conscious victim through physical force.

For those who want to advance the security and equality of women in our society, there are many heartening aspects to these developments. When a star college athlete rapes an intoxicated woman at a party, it is not typical that a national outpouring of support for his victim — and for political action aimed at providing victims like her with greater justice — follows in its wake. The fact that it did in this case is a testament to the work of feminist activists, and to the bravery and eloquence with which his victim made her trauma known.

What’s more, by bringing the punishment for Turner’s crime in line with that of “rape by force,” California’s legislature has declared that an intoxicated or unconscious human being has as much right to bodily autonomy as anyone else. Which is to say: Rape is rape.

It makes sense, then, that many progressive feminists see California’s new law as a precious acknowledgment of the horror of sexual violence — and the necessity of political action to support its victims, while reducing their ranks.

But there are less destructive — and more effective — ways of accomplishing those goals than by making our exceptionally punitive justice system even more draconian.

If we accept the premise of California’s law — that combating rape culture requires imposing longer prison terms on rapists — then progressives will be forced to chose between their commitments to achieving gender equality and ending mass incarceration.

The United States imprisons a higher proportion of its population than any other developed country. The American incarceration rate is roughly 3.5 times as high as the median rate in Europe, according to a 2013 report from the European Council of Annual Penal Statistics. This is not because Americans commit more crimes — victimization rates in the United States are comparable to those in Western Europe. Nor is our outsize prison population solely the product of our drug war. As the Marshall Project notes, 54 percent of the 1.3 million Americans in state prisons are there for violent crimes. Even if we freed every nonviolent offender in an American prison, we would still jail a far higher percentage of our residents than do our European peers.

The primary reason for America’s exceptional incarceration rate is that its voters are more comfortable with condemning their fellow citizens to cages for long periods of time than are those in other democracies. America doesn’t just impose unusually long sentences on shoplifters and nonviolent drug offenders. In other parts of the world, life sentences for murder are the exception; in the United States, they are the rule. Our penalties for sexual predation are already the most severe in the developed world. Today, sex offenders constitute the fastest growing segment of America’s prison population.

Rape is enabled by cultural norms; so is mass incarceration. Global surveys have found that America ranks higher than any other nation on the “public punitive attitude scale” — a measure of public appetite for inflicting punishment on criminals.

The most harmful thing about California’s bill may be the way it encourages this culture of incarceration. If one focuses narrowly on the law’s immediate effects, a reasonable case can be made for its virtues: A three-year minimum sentence for raping an unconscious person is not wildly out of step with global standards. It’s true that mandatory minimums transfer discretion from judges to prosecutors, thereby making it impossible for the justice system to weigh mitigating factors in individual cases, as Tara Culp-Ressler notes at Think Progress. But it isn’t unreasonable to argue that, in the case of sexual violence, such discretion is undesirable, as it allows a predominately male judiciary to make excuses for perpetrators of a historically under-prosecuted crime. And, anyway, California’s bill contains a provision allowing judges to exercise discretion in “unusual cases where the interests of justice would best be served if the person is granted probation.”

On the other hand, it is unlikely that many judges would take on the political liability of exercising such discretion. And the specter of a minimum three-year jail sentence has the potential to intimidate innocent defendants into plea agreements — a phenomena that is more likely to disadvantage the most-vulnerable members of our society, who can least afford to mount a compelling defense (social scientists have estimated that the rate of false reporting for sexual assault is between 2 and 8 percent).

Nonetheless, the problem with California’s law lies less in its immediate, legal implications than in its cultural and political ones. To end mass incarceration, progressives will need to persuade their fellow citizens that we can reduce penalties for violent crime without reducing our concern for its victims. The movement inspired by the Brock Turner case argued the opposite — it equated a judge’s decision to spare Turner a lengthy jail sentence with a callous indifference to the woman he victimized.

In calling for Judge Persky’s repeal, the movement fostered social and political stigma against the exercise of judicial leniency. People who look like Brock Turner will not be the ones most affected by such stigmas. Nor were they, necessarily, the principal beneficiaries of Persky’s own mercy: According to public defenders in the area, Persky was viewed as a thoughtful and responsible jurist. As one such attorney wrote in reaction to the recall effort, “My only outrage about Judge Persky’s decision would be if similarly situated public defender clients, particularly minorities, receive harsher sentences than Mr. Turner from Judge Persky; but no one has cited any such example. In fact, many colleagues in my office that appear before Judge Persky believe that a public defender client who wasn’t white or affluent would have received the same type of sentence from him.”

If there were strong evidence that longer prison sentences make a critical difference in deterring violent crime, then California’s law might still be worthwhile. But there isn’t. According to the 2014 findings of the National Research Council, applying a mandatory minimum to a given offense does not reduce its prevalence. The “certainty of apprehension” has a far greater deterrent effect than the severity of punishment upon conviction. Which makes sense: It is hard to imagine that Turner would not have been deterred from his crime by the thought of spending six months in jail and a lifetime on the sex-offender registry — but would have had second thoughts, if he’d known that the jail sentence would run at least three years.

Therefore, even if we bracket its implications for mass incarceration, channeling public outrage over sexual violence toward more punitive sentencing would remain ineffective. There are more transformative ways for our policymakers to serve the interests of rape victims. As Sarah Cate, a political scientist at the University of Southern Mississippi, recently wrote for Common Dreams:

When someone experiences sexual assault there are a number of protections that are needed for their healing that punishment does not fulfill. Victims of assault experience physical and psychological consequences that require adequate health care, financial support and paid leave time if they are employed. Maintaining employment and thereby economic security and access to health care is critical to helping someone recover from assault. About half of all sexual assault victims lose their jobs or are forced to quit their jobs after their victimization. Workplace flexibility, providing time off and medical care coverage are all essential ways to support sexual assault victims. We leave women “on their own” every day by not providing for everyone a safe workplace, housing, public transportation and employment with adequate pay and benefits.

There is a culture of rape; but also, an economics. Women are disproportionately represented among our nation’s poor. And impoverished women suffer a disproportionate share of our nation’s sexual violence: Women at the bottom of the income ladder are six times more likely to be sexually abused than those at the top. Policies that reduce the number of low-income women who are economically dependent on their partners will do much more to prevent rape than increasing jail sentences for offenders like Brock Turner.

To combat the cultures of rape and mass incarceration, progressives will need to convince the country that there are better ways to measure our society’s compassion for victims of sexual violence than in the number of years we lock up their abusers. But first, they’ll need to convince themselves.