In a rush to improve response and increase accountability for sexual assault, advocates and survivors turn to the usual systems (criminal justice system, Federal and state laws) and the usual tools (mandatory minimums, sentence enhancements, legislation). My concern is that these very tools and systems are rife with bias and have had a historic and disparate impact on those most underserved—the poor and communities of color. We need accountability, we need society to no longer condone or silence the epidemic of sexual assault, but we also need creative, thoughtful, and meaningful action to influence and re-imagine what accountability looks like.
A recent article in the NY Times on how mandatory minimums are not necessarily the answer or the tool we should be using to end sexual violence inspired me. Adding more inflexibility to our criminal justice system is not the answer. One of my favorite TED talks is Bryan Stevenson’s We Need To Talk About Injustice. This talk goes deep into the startling and sad and systemic prejudice that seems unavoidable in our justice system. Stevenson reminds us of the connection that our systems have to the racism, classism and sexism that still exists in our society. Our systems were born and raised in this environment and that has lasting impacts.
Honestly, the criminal justice system is not a level playing field. It is influenced by money and fame and savvy. Take the recent Brock Turner case (Stanford swimmer sentenced to six months for sexual assault) and even more recent case of Austin Wilkerson, who was sentenced for no jail time after raping an unconscious woman. The judge in the Wilkerson case states that he didn’t think putting Wilkerson in jail was the best result for anyone and talks about seeing if Wilkerson can be rehabilitated. While the judge’s statements resonate with me and my ongoing drive to discover system responses that will effectively eradicate sexual assault, something still rings hollow for me.
How much of these flexible and context specific sentences are due to a commitment to improved forms of accountability and the promotion of rehabilitation? Would this be the judge’s reaction if the perpetrator was a person of color? Both Brock and Wilkerson are white and privileged men. They had their families supporting them and hired highly skilled and strategic defense lawyers and teams. As much as I want to support alternatives to the criminal justice system, I am overwhelmingly concerned that these recent cases are the realization of white, high socio-economic status and really reflect the near hijacking of a progressive movement to change the criminal justice system. What theses cases showcase is the importance of a good defense attorney, and what we know is that it takes a lot of money and resources to afford a good defense attorney.
I applaud and share in the spirit of criminal justice reform, the need to remove mandatory minimums, and the call to build in context and considerations for judicial decisions. I will continue to fight against one-size-fits all requirements, change laws that serve only the “perfect victim,” and work to slow or stop the unchecked growth of the privatized criminal industrial complex. We need to have the tough and transformative conversations that examine what we as advocates have built, and we need the grace and space to imagine better. What concerns me at this impasse is making sure this reasoning is going to apply to all levels of the system and will be afforded to all involved in the system. If these arguments of rehabilitation and mitigation are only raised for white perpetrators, how does that reinforce a false narrative that connects criminality to communities of color?
If we want to have a true justice system, and if we want to have honest systems of accountability for sexual assault—then it shouldn’t matter how much money you have or the color of your skin. And right now it does.