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Image: Seth Page

#MeToo must go beyond the demand for punishment.

Women’s fight for the right to work free of sexual insult or molestation has been a long, long one. For nearly two centuries, in labor strikes and broadsides, speak-outs, marches, and now in social media, women have protested the ubiquity of sexual harassment and the impunity of its perpetrators.

But the #MeToo moment is also unprecedented. It signals the arrival of feminism from the margins to the center of political discourse. For the first time, men are not laughing. They are looking seriously, almost abjectly, at their own privilege and complicity.

We are not witnessing the omens of a looming sex panic; these are the symptoms of the one we are already in, and have been in for forty years.

The last couple of months also echo a troublesome history, however, whose legacy persists in the law and the Zeitgeist. “When does a watershed become a sex panic?” Masha Gessen asked recently in the New Yorker. The answer: what we are witnessing are not the omens of a looming sex panic; they are the symptoms of the one we are already in, and have been in for forty years.

It is unlikely we will be able to walk back the sex-crimes statutes we already have, but we may be able not to worsen them if we can avoid repeating the mistakes of the past. I will focus on three: first, conflating a wide range of behaviors as equally harmful; second, broadening the definitions of illegal acts and hardening their punishment, when the laws we already have are good—they just need to be enforced; and third, yielding to the desire for retribution, which only perpetuates brutality, rather than working for restorative justice, which holds the potential for genuine accountability and lasting change.

• • •

Four decades ago, feminists revealed another sexual scourge: child sexual abuse. Like sexual harassment, child sexual abuse happens in the dark—usually at home or with people the child knows. And as with workplace harassers, abusers choose victims who are vulnerable, dependent, or unable to escape. They deploy flattery and shame, bribes and threats to ensure silence.

Few victims mustered the courage to tell. But when they did, they were often met with disbelief. Even people who were aware of the abuse turned their backs; those who were supposed to protect the victims defended the victimizers instead.

Suddenly, though, revelations proliferated. A movement gathered, an analysis coalesced: child sexual abuse was not just personal, it was structural, a function of a system in which male prerogative erased the rights of women and children. Feminist activists, victims, anti-rape activists, psychologists, and child protective and legal professionals worked to make the law take child sexual abuse seriously. They also sought to change the culture and the family to end the sexual coercion of children.

But because this was about sex and children, hysteria was not far behind. Before long, an industry of feminist and Christian therapists and self-help writers were claiming that virtually every behavioral quirk or emotional trouble could be traced to sexual abuse, even if—especially if—the alleged victim did not remember it. “If you think you were abused and your life shows the symptoms, then you were,” wrote poet Ellen Bass and journalist Laura Davis in their massive bestseller The Courage to Heal (1988). The symptom checklists in it and similar books include everything from arthritis to feeling ugly. Bass’s book launched a battery of unscientific “therapeutic” and forensic interviewing techniques to extract false and “recovered” memories of sexual depredation. Ambiguous or affectionate touch—a kid poking another kid’s genitals, parents bathing with their kids, teachers hugging students—came under suspicion as molestation.

Over the last half-century, the solutions conceived for social problems have diminished to one: punishment. Because millennial feminists grew up in this environment, it has narrowed their vision too.

Estimates of how many women are sexually abused as children rose to as high as 62 percent, 2.5 times the most cited, and most inclusive, current statistic for girls and 12 times that for boys (these numbers—1 in 4 and 1 in 20, respectively—are likely still high because they lump together sexual harm that occurs from early childhood through late adolescence).

If psychologists had once dismissed reports of sexual abuse as fantasy, in the early 1980s a new crusade marched under the banner “Believe the Children.” With the sketchiest of evidence or none at all, child protective agencies removed kids from their parents. Credulous juries sent daycare workers to prison on charges of “Satanic ritual abuse.” Adults denounced their aging parents, guilty of nothing more than imperfect love, as sadistic rapists. It took only one accusation to ruin a person’s life. Bus drivers, babysitters, divorcing fathers, and boyfriends at the wrong end of a grudge lost jobs, families, and reputations with one accusation, one newspaper item. In its review of exonerations from 1989 to 2012, the National Registry of Exonerations reported that among convictions for crimes that never occurred, over half involved child sexual abuse. “Two-thirds of these cases were generated in a wave of child sexual abuse hysteria that swept the country three decades ago,” wrote the authors.

Along with this mania came a turn toward harsher treatment of the accused and convicted. In the name of “victims’ rights,” lawmakers of both parties hacked away at defendants’ rights. Eroding along with the constitutional protections of individuals facing the awesome power of the state was the bedrock principle of U.S. jurisprudence: innocent until proven guilty.

For feminists fighting sexual intrusions on children and women, grassroots activism took a back seat to providing services. Radical critiques were supplanted by faith in policing, prosecution, and prisons. It is no accident that the Violence Against Women Act (VAWA), the crowning achievement of what critics call this “carceral” feminist movement, was a section of the omnibus Violent Crime Control and Law Enforcement Act of 1994. While the crime bill shoveled money to the states to hire police and build prisons, VAWA married white anti-violence feminists to the violent state.

As panic over “sex offenders”—a category comprising more than a million Americans, from consensual teen lovers to armed rapists, public urinators to incestuous fathers—settled into everyday life, it was also inscribed in statute from small-town ordinances to federal law. The results: today about 170,000 Americans are in prison and juvenile detention on sex-related charges; another 6,400, having served their sentences, continue to be locked up indefinitely in “civil commitment” for crimes they might commit in the future; nearly 850,000 are listed on public sex offender registries.

Registered sex offenders are restricted in where they may live, work, or just be. Many are forbidden to live with their own children, even if their offense did not involve children. In some jurisdictions they may not volunteer as a poll watcher or put up Halloween decorations. Under federal law, the lowest-risk offenders must register for fifteen years, the highest for life.

To be a “sex offender”—a population with low rates of recidivism—is to face hatred, rejection, depression, penury, homelessness, and hopelessness. It is to expect discovery and fear violence against yourself or your family. It is to be a member of what George Mason University professor Roger Lancaster calls “a pariah class of unemployable, uprooted criminal outcasts . . . marked, registered, and transferred to a space outside society but within the law”—forever. To describe this existence, many have used the term sociologist Orlando Patterson coined for slavery: “social death.”

• • •

Knowing all of this makes me fearful today. We are still flattening distinctions. Garrison Keillor’s unintentional touch on a bare back is met with equal severity as Harvey Weinstein’s alleged decades of serial sexual assault. Alternet’s “17 Warning Signs” in Matt Lauer’s history include both blatant harassment, such as pinching Katie Couric’s ass, and inoffensive comments, including calling Pippa Middleton’s dress at her sister’s wedding “flattering.” To Believe Women—an ominous reprise of Believe the Children—is to disbelieve, and deny due process to, the accused.

Feminist civil attorneys have been parsing sexual interactions for bad acts that might be litigable; it’s not unlikely they will try to broaden the definitions of sexual harassment. Sexually demeaning words might be prosecuted as hate speech. Already, in the wake of #MeToo, a committee of France’s National Assembly is considering levying fines for catcalling. And as the creepy or rude becomes actionable, the actionable may become criminal. Many current felony sex offenses used to be misdemeanors, or not illegal at all. Driving a sex worker to a date, even if she asks for a ride, can be prosecuted as trafficking. Having sex without disclosing that one is HIV positive, even absent transmission, is a crime in thirty-two states punishable by up to thirty years in prison.

The more we entrust the state to mete out justice for sexual infractions, including harassment, the more we collude in the manner in which it administers “justice.”

Over the last half-century in the United States, the solutions conceived for social problems, from poor school performance to the global refugee crisis—to sexual disrespect—have diminished to one: punishment. Because millennial feminists grew up in this environment, it has narrowed their vision too. This was evident in the response to Secretary of Education Betsy DeVos’s amendments to the 2011 Department of Education directive that stepped up investigations and penalties for sexual misconduct under Title IX. The original rules mandated investigations, even if the purported victim did not desire one. They also prohibited the use of mediation to resolve sex-related cases. DeVos allowed voluntary resolution without investigation. Some, including representatives of the rights of the accused, welcomed the change. Face-to-face resolution offers an opportunity for the parties to understand “each other’s perspectives concerning the event in question, as well as their own shortcomings in communicating their own or tuning in to their partner’s wants and needs,” one organization’s director told Time. But the feminists who fought for the original policy denounced the move toward reconciliation as “a huge step back.” In fact, some hardliners have argued that the campus tribunals will never have enough clout; women should be encouraged to go directly to the police.

There are costs to this approach. First, the more we entrust the state to mete out justice for sexual infractions, including harassment, the more we collude in the manner in which it administers “justice.” You may be titillated by the idea of Charlie Rose in a jail cell. But it will not be the Charlie Roses who end up behind bars. Their lawyers will get them off with suspended sentences. The African American night manager at McDonald’s will go to prison. One in every 119 African American men is a registered sex offender—twice the rate of white men. Civil court, where there is no constitutional right to defense, is no fairer. County jails are packed with people who, for example, cannot pay their parking tickets or child support. If this seems just, it is also counterproductive. You cannot earn money in jail.

If the system is biased toward defendants, it serves victims differentially too. Under VAWA, with its mandatory domestic violence arrests and sexual assault prosecutions, some women are safer—the “credible” victims who are white, educated, middle-class, employed, and cisgendered. But according to scholars such as Beth E. Richie, Professor of African American Studies & Criminology, Law and Justice at the University of Illinois at Chicago, it has left behind poor women of color, single mothers, sex workers, undocumented immigrants, transwomen, and the incarcerated. These women are as likely to be harmed as helped by the state—they can be arrested themselves for fighting back, be evicted, or lose custody of their children. Gender justice is not justice if racial and economic justice are sacrificed for it.

Gender justice is not justice if racial and economic justice are sacrificed for it.

The other, incalculable cost is that we do not get closer to ending sexual violence. The criminal proceeding—in which the perpetrator’s job is to deny acts even if he did them and the victim’s is to shut up and let the prosecutor speak for her—both defeats accountability and disempowers the harmed. A brutal state makes men more brutal. The threat of retribution does not make people nicer or communities safer. Even the death penalty does not deter crime.

But intentionally or not, DeVos’s Title IX directive points in a more promising direction, away from the strictly punitive. Restorative justice, which is sometimes mandated by the courts, sometimes initiated outside it, is a philosophy and a repertoire of practices that seeks to make whole both the harmed person or people and the community whose values have been transgressed. In a restorative conference or “circle,” the victim communicates to the offender the emotional and material impact of the crime, he is compelled to hear and understand, and participants, including family or volunteers as well as the parties to the offense, together craft ways to make it right—apology, work, training. Critical in this process is the community, which, when it is ready, takes the transgressor back free of stigma.

Research in the British Commonwealth has found that restorative justice leaves victims feeling more satisfied than the conventional criminal justice process and reduces recidivism by more than 25 percent—a better rate than prison. Interestingly, restorative justice has also been found to be more effective for dealing with violent crime than with property crimes. In Canada and the United States, a restorative justice practice called Circles of Support and Accountability (COSAs)—in which volunteers offer substantial time in helping a released inmate acclimatize to life on the outside and stay straight—has been found particularly effective with high-risk sex offenders, reducing their commission of new sex crimes by 83 percent and other violent crimes by 73 percent, according to Canadian researchers.

Transformative justice comprises similar practices to restorative justice, but it eschews the involvement of the state and seeks to dismantle the systematic oppressions that feed violence both official and criminal. Not surprisingly, transformative justice was born in communities of color that had had enough of state punishment. Inspiringly, its leaders are women of color who have experienced sexual harm. Transformative justice is more than a practice of healing; it is a social justice movement. “It is critical that we develop responses to gender violence that do not depend on a sexist, racist, classist, and homophobic criminal justice system,” reads the manifesto “Gender Violence and the Prison Industrial Complex,” circulated in 2001 by Critical Resistance and INCITE!, two organizations of mostly young, mostly queer women of color. Signed by almost 150 social justice activist organizations and individuals, the statement calls on progressive movements to develop, document, and share “community-based responses to violence that do not rely on the criminal justice system AND which have mechanisms that ensure safety and accountability for survivors of sexual and domestic violence.” In answer to this call sprang many grassroots groups that are trying to do just that.

The longue durée of mass incarceration and punitive surveillance teaches us that state violence is no answer to interpersonal violence.

At the other end of the spectrum is restorative justice writ immense: truth and reconciliation commissions, such as those convened in the 1990s after the defeat of apartheid in South Africa, Augusto Pinochet’s military dictatorship in Chile, and the genocide and mass rapes in Rwanda. These countries had undergone unimaginable atrocities and human rights violations on a massive scale, at the hands of both state officers and ordinary people. At those commissions, thousands of victims faced their persecutors and testified to the harrowing harm they had inflicted. Aside from the architects of the crimes—who have been tried in international criminal courts and national tribunals—the proceedings did not for the most part trigger criminal penalty. Rwanda augmented its commission with a network of local traditional “Gacaca” courts, which gave victims the opportunity to learn the truth of what happened to their loved ones and perpetrators to express remorse and ask forgiveness of their communities. A few perpetrators were given hard labor, but many were sent home without penalty.

Truth and reconciliation commissions aim to balance the need to expiate personal and social trauma with the imperative to build systems and policies that will prevent violence in the future. They, like other restorative and transformative justice practices, are far from perfect. Transformative justice is still young and unruly. In one of its manifestations, a Chicago mother plastered a warning poster, with the photo of an ex-boyfriend who had abused her daughter, all over his neighborhood. Is guerrilla public shaming better than the sex offender registry? The vaunted “community” may wreak vigilante vengeance for the rape of a friend or relative. Is this more just than state-administered penalty constrained by the rule of law? After the Gacaca courts closed in 2004, fear and suspicion remained high for Rwandans living side by side with the people who had raped and murdered their families. In South Africa, twenty years after truth and some reconciliation, economic and racial justice have yet to be attained.

All that said, restorative justice offers a response to harassment and sexual violence that does not risk repeating the mistakes of the past. #MeToo is a kind of spontaneous truth and reconciliation commission. Its greatest power is political—the revelation of systematic oppression, rather than the rendering of personal payback. Might feminists resist the thrill of Jacobin purges and instead organize truth and reconciliation commissions in Hollywood, Wall Street, or the halls of the construction trade unions?

The longue durée of mass incarceration and punitive surveillance teaches us that state violence is no answer to interpersonal violence. Vengeance may satisfy for the moment, but it does not create a nonviolent, egalitarian, and just culture.