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Is redefining criminal sexual misconduct the way to address #MeToo?

Source: 
Above The Law
Author: 
Elie Mystal
Date: 
Monday, January 7, 2019

I don’t mean to sound like an incarceration-loving neo-liberal, but part of my response to #MeToo has been to favor more jail. I want more things called crimes, and the penalties for those crimes to be more harsh. Yes, yes I know damn well that whenever you make more crimes and more penalties, you make something that will disproportionately affect people of color and poor people. For every Brock Turner that you finally put the hammer to, you risk creating a bunch of black and brown “criminals” who are guilty of looking at the wrong white girl. And there’s no guarantee that your enhanced criminal regime will even catch the Turners of the world, ensconced as they are in their white privilege in front of white judges and juries who will seemingly always give them the “boys being boys” benefit.

Despite that… I’m pretty confident that more men need to be in jail for failing to achieve consent. I’m old enough to remember AIDS, and all the trash arguments about how men will never learn to stop the delicate dance of foreplay to intercourse by putting on a condom. You know what, men learned! They were educable! Something about POSSIBLE DEATH encouraged a lot of men to take an extra thirty seconds to practice safe sex. If the penalty for failing to achieve consent was consistent and devastating, more people would achieve consent. And we can sort out the disparities in race, education, and believability LATER. FIRST less rape, THEN more equality, if that’s the dystopian choice I have to make.

The Association of American Law Schools annual conference was this past weekend, and I went to a panel about what kind of reforms can or should be made to our criminal justice system in response to #MeToo. Let me tell you, when talking to a bunch of law professors, none of whom could be described as “rape apologists,” my “more jail now” views were seriously challenged. In general, the panel was skeptical about the ability of the criminal justice system to address these problems in any way that didn’t ultimately make it worse. Every time I go to AALS I am reminded that the closer you study criminal law, the more you appreciate how deeply it sucks.

The panel was moderated by Jenny E. Carroll from The University of Alabama School of Law. Panelists were: Bennett Capers, Brooklyn Law School, Erin Collins, The University of Richmond School of Law, Cynthia M. Godsoe, Brooklyn Law School, Aya Gruber, University of Colorado Law School, and Corey Rayburn Yung, University of Kansas School of Law.

I thought that Professor Gruber framed the discussion appropriately when she reminded the room that the #MeToo started way back in 2006 by Tarana Burke was about the abuse suffered by women and girls of color and how the criminal justice system failed to hold their attackers accountable. “That’s not Alyssa Milano’s MeToo,” she said. It’s a reminder that #MeToo now refers to a whole set of social behaviors and norms that are problematic and need to be challenged. But are those behaviors crimes? Professor Collins repeatedly mentioned that perhaps social problems need to be changed through social structures, not through the criminal justice system.

Professor Godsoe, who comes from a family law background, was perhaps the most strident in warning that criminalizing additional types of sexual conduct would have unintended consequences for already disadvantaged groups. Professor Capers warned that criminal law is already very bad at protecting men from sexual assaults, and that enhanced criminal penalties will do little to help them unless you are also changing the assumption about who is the “victim” of sexual aggression. There was a lot of conversation about what we wanted the criminal justice to solve: the “obvious” cases of “stranger rape,” the more common cases of date rape, or if we really wanted to criminalize sexual “miscommunication.”

We could probably achieve some general consensus on the first two issues, but I’m at least willing to contemplate the third category. I asked about moving the standard towards affirmative consent. Instead of “No means No,” which for some reason has resulted in “miscommunication” about whether a “no” was sufficiently lodged, why not move to a “Yes means Yes” standard where the absence of a firm, provable, “YES” is all the potential victim has to show to get the criminal process rolling?

You know that scene in Airplane where everybody lines up to slap the hysterical woman and tells her to get a hold of herself? Yeah, that’s pretty much what happened to my question. The professors were ready for a conversation about the weakness of an affirmative consent regime. I think Gruber noted that it would be tantamount to criminalizing how most people have sex. Godsoe danced a tarantella on the stupid “consent apps” available and how they prove nothing either way. Capers pointed out how I was still locked in a hetro, male-normative world where the man must be responsible for accessing the affirmative consent. Everybody pointed out that affirmative consent doesn’t really mean much when the law still must protect people who revoke consent after whatever “proof” of consent can be established.

While I was fully prepared to die on the affirmative consent hill in the face of all of those arguments — good arguments which I don’t find ultimately fatal to an affirmative consent regime — Professor Yung really surprised me with a study that suggested juries really don’t care about affirmative consent. He said that even when presented with evidence that affirmative consent was not given, and even when given model jury instructions that affirmative consent is needed in a academic study setting, modeled juries still consider the strength of the “no” over and above other factors.

And Yung was my boy! He was generally the panelist closet to my views about more aggressive criminalization of sexual misconduct. But Yung explained that his own scholarship had evolved on the issue: he was now more focused on getting the police to investigate the rape and assault claims they already receive. He’s more focused on getting prosecutors to bring the cases they already have, rather than creating new categories of criminal liability.

That seemed to be the place where the panel, and I, could agree. Let’s address the rape and assault cases where we all generally agree “rape” or “assault” has occurred, before we start criminalizing additional behaviors. That feels a little unsatisfying to me as a “response” to #MeToo. But also feels like the only reasonable place to start addressing the violence against women that necessitated the #MeToo movement in the first place.

Faculty name: 
Corey Rayburn Yung