Gender Justice
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S2: Before we get started, I want to thank the Widing Foundation, whose public engagement fellowship has made this season possible. And to Allison Holloran and Scott Eevi, whose ongoing patronage has made every season of high vibration possible. I also want to remind everyone that I’m doing invite only Zoome events with question and answers in response to the issues raised in each episode to get an invite. Visit hyphenation dot org. A word of warning. This episode is about gender based crimes from domestic violence to sexual assault. So you might want to take precautions if you’re listening with children or people who might find these discussions upsetting, some from slightly. Let me tell you about a scenario and you could think about how you would decide you’re a D.A..
S3: A woman comes to your office charging an acquaintance, a man with a sexual assault. They’re both teenagers. It happened in a high school parking lot. You hear her story. Then you get an investigator to question the alleged assailant. She claims she said no many times. She didn’t fight the alleged assailant. She was not trapped in the car. But she also didn’t leave during the incident. If it matters, the alleged conduct was manual and oral contact on her. The alleged assailant claims the young woman never said no. In fact, he interpretive her body language as consenting. You also know that immediately after the incident, she runs into the school and tells a group of teachers that she was just sexually assaulted.
S4: Now you believe the young woman. And if what she says is true, the incident was clearly a crime.
S5: And it turns out the testimony of the teachers is admissible under the law.
S2: Let’s build into the scenario that the alleged assailant is convincing.
S6: He comes off as believing what he’s saying. He doesn’t come off as lying to cover himself. Do you move ahead with charges, taking them to trial? Let me add a caveat. Your assistant D.A. has experienced prosecutors in their own right. Do not believe that they can convince a judge or jury in your district to convict the young man on these charges with this evidence, taking it to trial may re traumatize the victim. Setback future prosecutions cost the taxpayers money without the benefit of a conviction. So what would you do? Well, that was the decision that District Attorney Natasha Irving faced. She went ahead with the prosecution.
S7: I was disappointed in the verdict, but that’s what we had for a verdict, was an acquittal. The judge found, quote unquote, that they were both telling the truth, which is impossible in that situation. But that’s our criminal justice system. You get a verdict and you live with it.
S8: The prosecutors under her were correct in their prediction. But does that mean that Natasha Irving was incorrect in her decision to pursue charges?
S2: You see, it’s her judgment as D.A. that the woman’s testimony of her sexual assault is pretty good evidence for a conviction. People are just mistaken if they think that, he said. She said cases should always break in favor of the defendant in these cases. That might just be a sexist assumption. On the other hand, for prosecutor, the one who wanted to dismiss believed rightly that a judge or jury wouldn’t themselves think that that evidence was good enough.
S8: So what you’ve done is put hundreds of thousands of dollars of taxpayer money into a trial. You’ve put the victim through humiliating, maybe traumatic cross-examination for no payoff. And what about long term? Is it going to be better for victims to keep pursuing cases like this? Is it better for the criminal justice system as a whole? So was Latasha Irving correct or incorrect in taking the case to trial? Here are two competing views, both feminist views about the right answer.
S9: The prosecutors have a duty to bring cases forward that they think are legally sound based on the merits of the evidence, not on a prediction of what a jury might do. In so far as prosecutors recognize that there is a risk that their jury might not convict because the jury may hold sexist beliefs and they defer to that, they’re abdicating their role as public officials.
S10: On the one hand, there’s this burgeoning consensus that the United States imprisons too many people, uses criminal law for the solution to too many problems, and that jails themselves are a human rights disaster. On the other, there’s this idea that violence against women is rampant and we should exercise zero tolerance. Why does gender crime get a carve out from or even veto over the mass incarceration critique? Non consensual sexual assault is often a first second, third degree felony. We’re talking about sex offender registry for life and upwards of 10, 20 years in jail.
S11: From Slate. This is hyphenation philosophy in story form this season. Crime and Punishment recording from Vassar College. Here’s your host, Barry Lamb.
S5: Advocacy for women in the era of criminal justice reform is a tricky matter. Feminists fought many hard battles to get the state to take violence against women seriously in the form of criminalization and punishment. But right now, progressives want less guns, handcuffs and jail cells while also wanting more accountability for crimes against women. But what does holding people accountable mean? If you work for the state as a police officer or a prosecutor this week, we’re looking at all of the dimensions of this problem. The historical, moral and philosophical, as well as the uneasy alliance between feminism and American criminal justice.
S2: Do you consider yourself a progressive prosecutor?
S7: I think the term progressive prosecutor would probably be used to describe me, but I call myself a criminal justice reform prosecutor.
S2: Natasha Irving was elected district attorney in MidCoast, Maine, District six in 2018. Something that unifies reform prosecutors is their acknowledgement of the important role that prosecution plays in mass incarceration. Tough on crime laws alone aren’t sufficient as an explanation for the explosion in the prison population. Prosecutors have discretion in determining who to charge through the power of plea bargaining. They control how much prison time most people who are convicted will serve. The current wave of criminal justice reform, prosecutors are trying to use their discretion to be less punitive. Natasha Erving’s platform during her campaign was to replace tough on crime practices like jailing people for misdemeanor offenses with restorative justice practices, where perpetrators work with community groups to pay restitution for their crimes. It’s an alternative to prisons, which a lot of evidence shows makes low level offenders more dangerous to society once they’re out. But her platform also included a promise to increase investigation and prosecution of gender based crimes, domestic violence and sexual assault.
S7: This is one instance where I’m saying I want to make sure that we’re moving forward on more prosecutions. I just want to make sure that victims aren’t coming to us and saying I was raped. And then we’re telling them that they weren’t raped in the right way because that has been the message in the past.
S12: It’s part and parcel of progressive policies that you’re using the state to help correct historical injustices. It just so happens that for prosecutors, two different historical injustices are pulling them in different directions. The way that Natasha Irving has changed things in her office is to give herself as a veto power over the decisions of the nine assists as to whether to decline a sexual assault case. She has so far overridden two decisions of her assistant D.A. is a little story I told you about at the opening. That was one of them. The other case has yet to go to trial. When I asked Irving what the disagreement was between her and her prosecutors, her answer was simple.
S7: We have no idea what a jury is going to do.
S13: So don’t try to predict, prosecute or don’t prosecute on your own judgment of the evidence. Yet underneath the superficial disagreement lies a deeper one. One that speaks to the heart of the epistemology of rape accusations. Natasha Irving is trying to change the narrative around what counts as good evidence for and against the belief that a sexual assault occurred.
S7: So I hate the term, he said she said. It seems to only be used in the context of sexual assault, maybe domestic violence. It’s never used in all of the other conceptual, he said. She said cases, thefts, criminal trespass. And I’ve discussed this with a defense attorney that I that I know in my district that, you know, she’s feminist, I’m a feminist. And we have he said she said are the basis of like, you know, a huge amount of our cases would be what what technically. Right. Conceptually is a he said. She said or if she said she said or he said he said and we believe testimony based on what we know about the world. Right. We believe testimony based on circumstantial evidence and other corroborating evidence.
S13: If testimony of victim and perpetrator is the best evidence you have, it doesn’t mean you don’t have good enough evidence. You might. It’s certainly good enough in a mugging or a trespassing charge. And secondly, a lot of things people think is good evidence to doubt the accuser just isn’t.
S7: So whether somebody was under the influence, whether somebody is addicted to a substance, whether somebody has a criminal history when she was allegedly sexually assaulted or they might testify that they willingly went into their car with their alleged rapist, they might say that they didn’t get out of the car. They weren’t locked in. They weren’t handcuffed. But they froze. And they said, no, these are the types of cases that we’ve seen come along where they may have been declined in the past because those cases traditionally and there has been pushback as to whether a jury is going to believe that a woman was raped. Those issues are not pertinent to me. It’s clearly illegal. We believe the victim. We’re going to move forward those trials.
S14: In a trial, you’re supposed to prove beyond a reasonable doubt that the defendant committed a crime. Some of the criticisms about Natasha Erving’s approach say that she’s lowering that standard for men accused of gender crimes in the interest of social and gender justice. Feminist critics say white men to be convicted on lower standards of proof. But that’s not accurate. Instead, Natasha Irving is saying that the old standards for gender crimes were set unreasonably high. Evidence that counts as proof beyond a reasonable doubt for a mugging hadn’t been treated as sufficient proof of rape. Conversely, what people took as reasonable doubt that a rape occurred actually doesn’t give reasonable doubt at all. In other words, judges or juries who would acquit because the woman was drunk or had consensual sex with a defendant in the past or didn’t leave the car are not entertaining reasonable doubt.
S3: They’re entertaining unreasonable doubt. They’re using sexist standards of evidence. That’s the argument. Feminist prosecutors aren’t lowering the standards for a conviction.
S5: They’re correcting them.
S9: Hello, I’m Michel Martin Dempsey. I’m the Herald Reisz line scholar and professor of law at Villanova University, Charles, which are School of Law outside of Philadelphia, Pennsylvania.
S2: Michel Martin Dempsey is a philosopher, legal scholar and also a former prosecutor. She’s a prominent feminist writer on the prosecution of domestic violence and sexual assault.
S9: You hope that jurors are going to come with an open mind. But jurors are members of our society and they’ve been socialized in our society, which adheres to many patriarchal norms and has certain ideas about how women should behave. If you’re in a small town and a young man has been accused of a crime, but that young man just happens to be the son of the older man who owns the factory in the small town and that factory employees two thirds of the town. There’s going to be a lot of implicit pressure to acquit this young man. But that shouldn’t work into the prosecutor’s thinking about whether or not to bring the case forward. And we see this play out in sexual offenses where prosecutors say to a victim, well, I believe that you were assaulted. I believe that you were raped. I believe you did not consent to this. But I think I’m going to have a hard time convincing a jury of that. And that strikes me as absolutely no excuse for dismissing a case. It is ultimately up to the prosecutors to bring the cases to the jury, which the prosecutors believe should result in a conviction. And if the jury acquits, then so be it.
S2: Michel Martin Dempsey has a view about prosecutorial discretion, particularly with respect to gender crime. Let’s start with the assumption that there’s going to be sexist views out there, including how believable women are, whether a woman’s sexual history makes her less likely to have been raped. A lot of these views will make it to jury boxes or judges minds among a host of other places. If you’re a feminist prosecutor, your job is not to defer to these views in determining the merits of a case. You should be aiming to change the society that permits and encourages views like these to stick around. Michel Martin Dempsey calls this advancing a feminist state.
S9: Let me say something about the phrase feminist state. I stole it from Catherine McKinnon, who was my professor in law school. And what I mean by it is simply a state that is feminist. And by feminist, what I mean is a character trait that is stands in opposition to patriarchal the systematic failure of police officers and prosecutors to investigate these sorts of crimes. Strikes me as sexism. This is simply a systematic dis valuing of women and girls. They don’t think these cases are worth looking into. It’s very easy for them to tell themselves, you know, narratives that played out in a way that make the women or girls to blame for what’s happened to them. And so they don’t bother to pursue it. Each of these strands tend to kind of work together in ways that create and sustain patriarchal structural inequalities in when the state acts in such a way that tends to sustain and perpetuate patriarchy. Then I would say, well, that’s pretty patriarchal state. Let’s try to transform that and act against it, which is what I would call being toward a more feminist state.
S2: What a feminist prosecutor is aiming to advance a feminist state, undermining patriarchal norms of what counts as sexual assault. They’re going to lose a lot if they’re working in a patriarchal state. That’s a prediction about reality. But as philosopher David Hume famously said, is doesn’t imply art. And what will be does not imply what should be. Would you describe prosecutors who use something like a predictive approach to prosecution as something as strong as well? Actually, they’re participating in sexism, or would you say they’re complicit in it? Or how would you describe that?
S9: I would certainly think that they’re being complicit in it. If they abdicate their discretionary power in domestic violence cases to the victims or if they abdicate their discretionary power to some imagined sexist jury in sexual violence cases. Either way, they’re abdicating their responsibility as public officials. And it’s in some respects, that’s all just a myth because they can’t abdicate that power. The power to bring charges, the power to pursue charges. The power to dismiss charges. The power to plea bargain charges down to something lesser to sentence bargain, a different sentence. All of that rests within the power of the prosecutor, and there’s just no getting rid of it. So it is disingenuous for prosecutors to suppose that it’s even possible for them to abdicate that power, either to victims stated preferences or to some imagined sexist jury.
S3: A feminist prosecutor is aiming to overturn, not reinforce, patriarchal practices in criminal justice. One implication is that we should go even farther than Natasha Irving. Irving thinks you can never predict what a jury is gonna do. They might just be feminist enough to convict. Dempsey thinks even if you could reliably predict that, you’ll lose. It would matter. The goal of effective feminist prosecution is not winning. Especially if that means winning by patriarchal standards of justice. The goal is advancing the interests of real justice. The true standards of evidence and proof, the feminist ones.
S9: My primary critique is that prosecutors oftentimes view they exercise their discretion regarding whether to take a case forward to trial wholly through the lens of whether or not the consequence of this trial will be a conviction. And they therefore fail to see some of the intrinsic values that can be brought forth. So kicking off a moral dialog in the community. And even if it doesn’t ultimately have the consequences, you’re still trying. And so there’s sort of what I would call it, a telic value in in trying to achieve these good consequences. There’s also expressive value. So if the prosecutor believes the facts that I’ve been presented with here constitute a sexual assault, they constitute a rape. Bringing it forward expresses that truth. It’s an expression on behalf of the state that they believe the victim. They believe that what happened to the victim constitutes a crime and that it’s worthy of being brought forward to a jury. And there is an intrinsic value to the truth telling by the state regarding that crime. And then if this sort of behavior is over the long term, habituated by prosecutors, they little by little can reconstitute the character of the state from a more patriarchal state toward a more Feministing.
S7: Harvey Weinstein was just convicted. Bill Cosby was convicted. Those are cases that could be described by naysayers in the exact same way. It’s one person’s word against another. But we’re using Ockham’s Razor a lot of times, right. What is the most reasonable explanation for just trying to even the playing field here?
S5: Winning is good, but winning is just one value for a prosecutor. The other value is the value that trying and losing does to change the culture and society against sexist procedures and norms of evidence. In reality, though, the legal system isn’t going to be filled with quixotic prosecutors losing all of the time while trying to advance a more feminist state. It can’t be. Not with the kind of power prosecutors wield in this country. They win even when they don’t. For every one case, a prosecutor may lose and trial. There may be 20 cases where the pursuit of prosecution alone will get you a victory. Through a plea bargain. Natasha Irving did lose one trial, but she’s also been able to get guilty pleas out of many others simply by prosecuting them when others wouldn’t have. Out of fear that a jury wouldn’t convict. That’s the practical upshot of using prosecutorial power in the era of the plea bargain. The threat of a conviction with prison sentences, lifelong appearances on sex offender registries, prohibitions on where you can live, what jobs you can have. These are significant drivers of guilty pleas in America. Maybe that’s a good thing because it means a quicker path to a feminist state. Fewer people getting away with it, more fear of consequences, less sexual assault. But it also sets up a very different kind of critique of feminist prosecution.
S10: How did feminist anti violence sentiments become inseparable from tough on crime, pro prosecution sentiments? What I worry about is that feminism is becoming the thing that’s sustaining carceral logic and mass incarceration.
S8: When we return, the recent American history of domestic violence prosecution and how it may have backfired for progressive causes. Five nation will return after these messages.
S2: My name is Lawrence Sherman, I’m an experimental criminologist, Lawrence Sherman is a bit of a legend in criminology.
S1: We try to test the effects of what police do and whether it makes things better or worse.
S2: His experimental work on law enforcement tactics spanned 40 years, covering the police use of deadly force, domestic violence, gun violence, restorative justice and more. He was just awarded the 2020 August Volmer Award from the American Society of Criminology. In the early 1980s in Minneapolis, Sherman was presented with a unique opportunity to do a randomized controlled experiment about police conduct. When Minneapolis police were out on a domestic violence call, they were randomly assigned to do one of three things to the alleged abuser.
S1: One of which would be arrest. And the other two were what they had been trained to do in the 70s, which was to try to mediate and maybe separate the parties, have one officer talking to the victim and one to the offender. And the third one was what police like to do if they didn’t want to make an arrest. So they would tell the offender to leave and don’t come back here for 24 hours. We agree that they would compare those three treatments by the classic method of a clinical trial, which is to give equal probability to each of those three treatments.
S2: Every time you encounter a case, the goal was to see which of the three practices had the best results in the six months following the encounter with the police. What was the most effective tactic to reduce domestic violence? Of all the alleged abusers were arrested, 10 percent of them were arrested again, at least once for domestic violence within the next six months.
S1: People who had been given mediation were substantially higher, and the people who had been sent out of the house for the night were over twice as high, well into the low 20s of repeat offenses.
S15: So rest worked best from the Minneapolis experiment in that city in that context. It looked like arrest was the best thing to do with those cases at that time.
S3: This one little experiment on 314 domestic violence calls would have some of the farthest ranging policy implications, not just in the next few years, but for the next 40.
S15: When we first reported this result, it was taken up from the New York Times Science Section story and reprinted in over 300 newspapers around the United States.
S16: There was just a lot of stuff going around in 1984 on the battered women’s issue. That’s IRA Gruber, law professor at the University of Colorado. There were a lot of sort of pop cultural things going on. There was this movie that came out called The Burning Bed. And then this study comes out. It shows that arresting, you know, really does deter domestic violence. And we have police departments rapidly moving to adopt pro and mandatory arrest policies within a few years.
S15: Twenty eight states actually made it mandatory and imposed a thousand dollar fine on officers who didn’t make an arrest or one year in prison in some states. I can say that all of these things happened in a sequence that led many people to be concerned that a mandatory arrest approach was going to promote more mass incarceration of African-Americans in many places.
S2: The most prevalent call police received daily are domestic violence calls.
S7: Domestic violence is perhaps the greatest public health threat that we have. Natasha Irving. And it’s the greatest contributor to the cycle of criminality to this date.
S2: 21 states still have mandatory arrest policies for domestic violence calls with a lot more jurisdictions and police departments opting for the policy even if their state doesn’t. That wasn’t the desire of Lawrence Sherman.
S1: We never recommended that people make arrest mandatory. We said that we need more research. But for the time being, the evidence is what works best is arrest. That that’s a long way from a law that puts police in prison if they don’t make an arrest, because you shouldn’t be making a major policy on the back of one study with three hundred and fourteen some offenders in medicine, you would rarely have a study that small as your outcome is death.
S17: I’m IRA Gruber. I’m a professor of law at the University of Colorado. The name of my book is The Feminist War on Crime The Unexpected Role of Women’s Liberation in Mass Incarceration.
S2: Aya Gruber has studied extensively how various feminist movements in the U.S. have advocated on behalf of women who are victims and survivors of domestic violence. Lawrence Sherman’s Minnesota experiment did not lead to mandatory arrest policies in a vacuum.
S17: There was a real fight in the late 70s between what I call anti-poverty feminists and anti patriarchy feminists. The anti-poverty feminists saw the number one barrier to women’s equality as their economic disempowerment. Within a capitalist market. So there were many feminists, particularly black feminists and a famous one. Her name was Johnny Tillman. She was head of the welfare rights movement.
S2: This is the National Welfare Rights Organization, which was active between 1966 and 1975.
S17: They really spearheaded this idea that what the government needed to do was give women more money. Right. Give them the opportunity and the means to escape abusive marriages or even choose not to marry, and that they could live full lives raising their children without either having to be policed by the state or having to be policed by what was then a very racist, sexist capitalist market. Early on, however, the anti-poverty feminists ran up against the anti patriarchy feminists who saw feminism as a matter of women competing in the workplace. And so the idea was, well, we don’t like this anti-poverty idea of women getting welfare because we’re trying to establish that women are as able to work as men and should rise to the top of the corporate ladder instead of trying to tear down the corporate ladder. And those rifts affected the early battered women’s movement. Another part of that rift was racial and socio economic. So for black feminists, one of the key factors in domestic violence was racism. In society, like women of color, were more apt to have to stay with abusers for financial reasons because they were so disempowered in the market. And at the same time, men of color were likely to feel more social stressors and be more prone to violence because of racism in society and in the market. While this ran up against anti patriarchy feminists main narrative, that battering wasn’t a matter of poor people or black people, but that battering was a matter of men and their sexism and sexist laws in society. So anti patriarchy feminists took pains to establish battering as a matter of what sexist men enabled by tolerant laws did to women. One of the things I really look at very closely in my book are these 1978 hearings in front of the Commission on Civil Rights, which were vae domestic violence hearing. They set the stage for the National Coalition Against Domestic Violence. At these hearings, you heard time and time again. Abuse crosses every racial and socio economic class. It is no different for a wealthy white woman in a upper middle class home. As for a black woman in the, quote, ghetto, I mean, that’s the language they used in 1978. So it was very important for the anti patriarchy feminists to keep law makers squarely focused on the problem of sexist men emboldened by tolerant law.
S2: The 80s saw an extensive lobbying campaign from legal feminist groups that looked to criminal law, policing and prosecution to correct what they considered was a history of the states under intervention on behalf of women. But it’s easier to get the criminal law to solve a social problem if you can identify the social problem as a problem in criminal law. According to Ana Gruber, that’s what some legal feminist groups did.
S17: So the idea that was extremely embedded in the feminist narrative and still is today is that the primary reason why police don’t, quote unquote take domestic violence seriously is that they are really sort of these antediluvian sexist actors with archaic views of men’s right to beat women. They think abuse is no big deal or worse are batterers themselves.
S2: According to the historical record, however, there were a lot of reasons why police officers didn’t arrest many people for domestic violence prior to the Minnesota experiment. One explanation was just technological.
S1: Even in the 80s when we were doing these experiments, a lot of households in poverty neighborhoods, they didn’t have landlines. And if people wanted to call the police, sometimes they went out to phone booths at the convenience store or somewhere else.
S2: Frankly, people couldn’t call a seven digit number very easily because, of course, we didn’t always have nine one one, even in the late 80s. Only about half the country’s population had access to it.
S1: When we went to three digit numbers, the total number of calls to the police exploded. Domestic abuse is one of the most common emotional crises that people call the police about. So there is this very steep increase in the number of domestic calls the police confronted.
S2: The second explanation was legal. Arresting someone was just a much bigger deal back then.
S1: The police couldn’t make an arrest unless they had seen the crime occur unless it was a felony. So it had to be very serious for them to arrest without having witnessed the offence. In Minnesota, the activists said, OK, we’ll fix that. They went to the state legislature and got a special law that said if it’s domestic abuse, even if it’s a misdemeanor, the police can make an arrest without having seen the crime, without having to go to court to get a warrant.
S2: And finally, once police had this power, it’s true that they expressed reluctance to use it. But from testimony recorded during this period, their reasoning was complicated.
S1: They were convinced it was dangerous, that they thought if they made an arrest, it would actually provoke more serious violence, more persistent violence. It makes a big deal out of the situation.
S17: The number one reason why police officers refrained from arresting is that the victim did not want arrest. They came to detest domestic violence calls because they liked the simple practice of going in there, seeing a criminal, arresting them forcibly and having the victim be grateful. What they didn’t like was going there, having to be a mediator or arresting in the woman’s, yelling at them for arresting or arresting at the time and then being called there, you know, a week later and they have to do it again. So it turned out that when feminists were ultimately successful in these lawsuits at getting these police departments to adopt pro arrest and mandatory arrest policies, police ended up really liking them because they no longer had to decide what to do in the years following the Minnesota experiment as jurisdiction after jurisdiction, arresting mostly men for domestic abuse.
S18: Lawrence Sherman and a host of other colleagues went to many different regions in the country to see if arrests reduced domestic violence everywhere. Demographically, Minnesota was not representative, for instance. It was much more white and much more middle class than, say, Milwaukee, where Sherman conducted his following. Milwaukee had far more African-American neighborhoods, as well as neighborhoods with higher unemployment levels. Similar follow up studies happened in Omaha, which was more white working class Miami, which had a larger Latino and Roman Catholic population.
S19: Charlotte, North Carolina. And Colorado Springs, Colorado.
S1: The findings were pretty different in these other experiments. No repeat experiment found. The big difference between arrest and non arrest that the Minneapolis study had found the effect on unemployed offenders was totally opposite from the effect on employed offenders.
S2: If the alleged domestic abuser had a job arresting them for domestic abuse, reduced the chances by a half that they would abuse again within six months. If the alleged abuser didn’t have a job arresting them, more than doubled their chances that they would abuse again within six months.
S19: And these two opposite effects cancel each other out so that in the aggregate, arresting was no different from not arresting.
S20: Just to go to the three major racial groups in the United States. It worked in Omaha for the white offenders. Same pattern in Milwaukee with predominantly African-American offenders. And same pattern in Miami with potentially Hispanic. We’ve never had a police experiment that was so clearly different in the ethnicity or demographics of the offenders and getting exactly the same pattern around this key predictor of employment.
S19: The studies did find that African-Americans were likelier to reoffend after being arrested than whites.
S20: But that’s only because more African-Americans were unemployed when we actually controlled for employment. There was no racial difference. Unemployed white offenders and unemployed black offenders were consistently becoming more violent in the aftermath of an arrest compared to the aftermath of a non arrest resolution by the police. And the offenders who’d been arrested actually were more likely, significantly more likely to get murdered than the offenders who hadn’t been arrested. Again, across all groups, maybe it made them angrier and more provocative in bar fights. Who knows?
S19: Sherman didn’t leave it at that. Twenty three years after the Milwaukee study, Sherman and his colleagues wanted to compare the long term impact of arresting someone for domestic violence in Milwaukee. In particular, they looked at the long term impact on the victims of abuse. That arrests of their partners help them or hurt them more in life. Remember, police were randomly assigned to arrest people or not arrest people during the experiment.
S3: So it’s as close to a controlled study as you could get outside of a lab.
S20: We found the original names, dates of birth, addresses of all of the victims and all of the offenders. There is a 64 percent higher rate of death in those cases compared to the control group where the police gave a warning and left the couple alone in the house.
S1: And that was for everybody. Now, if you just look at African-American victims, the death rate was twice as high as five percent. If the offender had been warned, it was 10 percent, if the offender had been arrested. That’s a death of the victim. It’s not by getting murdered. It’s from heart attacks. It’s from cancer. It’s from things that arguably could have something to do with the immune system, with the general state of health, psychological well-being of people.
S2: The data said that African-American women were twice as likely to die within twenty three years of having their partners arrested for domestic violence compared to women whose partner was not arrested. When you scrutinize the data, it says even more than that, it says that African-American women who were themselves employed were the most vulnerable to early death in the aftermath of an arrest of their abuser. Lawrence Sherman’s hypothesis. Hypothesis that comes from sociologists and public health researchers is that long term physiological stress response is consistently high. Cortisol levels have a way of damaging the immune system and the body’s resilience to infection and disease. What he didn’t expect was to find such a large effect from a single incident of partner arrest on African-American women.
S1: We know that arrest in an African-American poverty ghetto in one of the most segregated communities in the United States was very hard on the victims. It was supposed to be protecting. And as I said in Milwaukee when we announced the findings, this is a policy that is achieving protection against domestic abuse for middle class white woman at the expense of causing greater violence against low income black women.
S21: That has been one way that mandatory arrest policies for domestic violence have backfired.
S16: And there are more women over the past couple of decades have been the fastest growing portion of the prison population. Arrests of women for assault and violence related crimes are up by a third.
S21: A study in California showed that post mandatory arrest policies that arrests of women increased by 400 percent as a whole woman went from about five percent to about 15 percent of people arrested for domestic violence, roughly mirroring the rate that they’ve grown as a percentage of the incarcerated population.
S16: Women haven’t gotten 30 percent more violent over the last several years. It is changes in how police manage and view women’s violence that have caused these exponential increases in the arrests of women. And I think that the domestic violence progress story is a crucial under mentioned and theorized part of that story.
S22: We’ll return to the rest of hyphenation after these messages.
S13: How do you feel about the fact that when people advocate the continuation of mandatory arrest policies, they’ll cite a study that you did? The older one? Yes. And then ignore all of the facts from the subsequent and better studies that you’ve done saying that the effect on poor black women is negative.
S1: In 1984, the assistant attorney general of the United States of America said to me, it’s a good thing you’re Minneapolis’ study showed that arrests work best because if it hadn’t shown that, I would have attacked your methodology. That’s what we call policy based evidence. If you don’t come up with the right support for the policy, then we attack your evidence.
S2: Lawrence Sherman has been advocating the discontinuation of mandatory arrest policies for domestic violence for some time now. And the more data he presents about the negative effects it has on victims like a 23 year mortality study, the less seriously he’s taken.
S1: I think essentially nobody wanted these facts. The legislators in Wisconsin, for example, where they had made arrest mandatory, didn’t want to accept the facts. It’s always been about mandatory rest, yes or no. And that’s a kind of battle line that’s not so much about the facts as it is about not going soft on domestic violence, not reducing our commitment to declare that males abusing women is morally wrong. And we need to condemn it with the force of law, even medical journals, which had every reason to publish research that shows reduction and violence reduction and death. They didn’t want to touch the mortality study because frankly, I don’t think they thought it was. It made sense. People can’t get the idea of deterrence not working when somebody gets locked up because it seems so obvious. But the people who think that had never been locked up.
S3: The lesson from mandatory arrest policies is that certain ways of implementing a feminist state through the criminal justice system can backfire. And this may hold lessons for our current fights against sexual assault. Gender, race and class neutral policies like mandatory arrest do not have gender, racial and class neutral consequences for perpetrators or victims. And this makes sense because the society, the criminal law is imposed on is not gender, race or class neutral. It’s pretty well documented by now that on some college campuses, black males can make up less than 10 percent of the population, but over half of defendants charged of sexual assault.
S4: It just can’t be because they rape more.
S5: It has to be because they’re reported more or equivalently, white offenders are reported less.
S2: These kinds of concerns carry over to prosecution.
S4: Victims who are affluent may benefit more and have less to lose in the pursuit of a prosecution of their offender.
S2: A defendant who is black, whether they’re guilty or innocent, has more reason to plea because they see conviction and trial as likely because they’re black or because the consequences for them in the long term can be devastating.
S4: The question is, what do you do with this kind of information? Once you accept it, no solution looks promising.
S5: You can decide to do gender, race and class sensitive policing and prosecution.
S4: Don’t arrest people who are black and unemployed, but do arrest them if they’re white and middle class. That’s not even constitutional. But even if it were, is it moral?
S5: You can’t decide that the disparities in impact on perpetrators and victims are an unfortunate but necessary cost for some gender justice.
S2: But shouldn’t justice be about fairness, not just in procedure, but an outcome?
S4: And finally, you could think that these considerations break against feminist policies that look to the criminal justice system to solve the problems of gender based crimes.
S5: Gruber.
S17: I am convinced that the most feminist move and the most just move is to do the thing that is less satisfying, less popular. And harder. And that is when looking at issues of gender violence. Look to all the structural issues of which patriarchy is only one, decide where you can make a change and understand that if you engage criminal law, you do not get to ignore the costs. You have to be accountable to the cost of putting bodies in cages.
S19: I have Gruber’s book is The Feminist War on Crime. You can find a link to it on our website. Natasha Irving.
S7: And we’re having honest conversations about looking at different methods to try and bring about justice. And it doesn’t look like just locking people away in prison for the rest of their lives. That’s not what it looks like. And that’s not what I’m looking to do in the vast majority of our sexual assault cases. And I think that we need to start looking at better data driven approaches and in victim centered approaches. But I don’t think that should preclude prosecution.
S23: Michel Martin Dempsey first.
S24: Insofar as we have a problem with mass incarceration, which we absolutely do, domestic violence and sexual assault are not driving it. I think it would be a mistake to suppose that we should decriminalize domestic violence or sexual assaults for fear that it might contribute to some incarceration. So far, it’s contributed to very, very little incarceration. The second thing is, honestly, I think my views on this have changed over the years. I have come to see how ineffective the criminal justice system just is. Part of me thinks, well, if you want to change the world, you want to change community, you would be a fool not to engage with the state because the state is the biggest kid in the playground. And you need to get the state on your side to make the sorts of structural changes that you want. It still sounds true. But I’m conscious of the fact that domestic violence victims who call nine one one may be putting themselves in great danger. They may be putting their partner at greater danger. So I’m as I age, I, I guess I don’t see the changes that I wished and had imagined in my mind. Way back when and and I become despondent and fear that maybe it just can’t or won’t be different.
S25: My nation is written, produced and edited by Barry Lamb, associate professor of philosophy at Vassar College. Editorial director for Slate podcast is Gabriel Roth. Senior managing producer for Slate podcast is June Thomas, operations manager for Slate podcast. Is Asha Suja, editor for Slate.
S8: Plus, it’s me charting her new executive producer for Slate podcasts is Alicia Montgomery. Special thanks to Carrie PFEG Door. Helen Christie, Mark Robinson. Megan, Jerry Nathan Tower. Rick Rush and Amanda Walwa, whose patronage has made every season of hyphenation possible.
S11: Production assistance this season provided by Noah Mendoza. Good visit. Hi fi nation dot org.
S25: For complete show notes, soundtrack and reading list every episode. That’s h i p h i. Nation follow hyphenation on Facebook and Twitter and at the Web site for updates on stories and ideas.
