During a brief stint working as a lawyer for indigent death row prisoners in Louisiana, I attended a public forum where one of the speakers was a former long-time warden of a Mississippi prison. While speaking, he expressed a reflection that neatly condensed the key conundrum of criminal justice in Western society. ‘Americans have never really come to terms with what they mean by the word “penitentiary,”’ he said, ‘whether it is about punishment, safety or deterrence.’
The problem is that much modern political writing conflates the three, when each objectively warrants separate consideration. This confluence comes to a head particularly in debates about violence against women.
Such debates happen for good reason: domestic violence is the leading cause of death and disability for women of reproductive age. The vast majority of this violence presumably constitutes a crime. That this is tolerated by our society is alarming.
Instinctively, we tend to think of women being accosted in dark alleys by an unknown man. Nonetheless, statistically, the majority of domestic violence does not involve random acts of violence by strangers. The risk from stranger violence is severe, in terms of potential consequences, but it is also small. In this sense, while there are certainly people who are so damaged that they need to be removed from society for safety reasons, it is hard to see how the legal system can offer protection (without pre-emptive findings of guilt) from this uncommon type of violence, which is essentially random.
Safety, therefore, is not something that the criminal justice system can realistically guarantee. Focusing on this exception to the general trend in this type of offending obscures the more routine forms of harm women experience. Though there are still those who campaign for stricter laws and more surveillance in reliance on the false hope these offer (often ignoring their political downsides), fortunately, this tendency does not attract much support within feminism.
There is, however, a considerable strand of feminist writing that sees criminal justice as squarely about punishment and deterrence. That is, the punishment of individual offenders is necessary to send a message that violence against women should not be tolerated. This is how we get articles like this by Jessica Valenti about Oscar Pistorius’ killing of his partner Reeva Steenkamp. Valenti notes that Pistorius was arrested for the crime in a context of previous domestic altercations, but apparently had mistaken Steenkamp for an intruder. For Valenti, this constituted ‘the misogynist response to the crime [which] has become a familiar theme here in the United States.’
Presumably Valenti’s point is that it can be difficult to convince law enforcement to take allegations of domestic violence seriously and this can lead to unnecessary homicides. Presumably she also thinks these crimes are easily defended because they are not treated as seriously. According to the ABS, in Australia, it is statistically easier to be acquitted of rape than other violent offences. The justice system does seem to have a penchant for sidelining female victims.
But there are obvious structural reasons for this. The criminal justice process is awkward and inappropriate in such situations. In all probability, the two people at the centre of a dispute will share a life, a home, or relatives and sometimes children. Even law enforcement with the best of intentions (a rare beast to say the least) cannot create respectful ongoing domestic relationships.
Trying to make an example of Pistorius for feminist purposes, particularly in a context where much of the evidence is unknown, is fraught. Valenti clearly assumes that Pistorius is guilty (or perhaps she simply harbours an indifference to the matter) – so much so that if he is acquitted, the result will be perceived as yet another example of society’s tolerance for violence against women.
The problem is not just that Pistorius might actually be innocent, though the credibility of Valenti does suffer when she expresses outrage at events before we know what actually happened. More than that, the problem is a political one: Valenti’s response, and similar responses to other violent crimes against women, oversimplifies the nature and function of the criminal justice system.
It’s hard to imagine, but there was a time in recent history where people campaigned for the abolition of prisons. Then came the War on Drugs and skyrocketing rates of incarceration. Such a campaign seems laughable today.
The criminal justice system is a tool of social control. Michelle Alexander, in her book The New Jim Crow, eloquently describes how mass incarceration is a practical contradiction of the American myth of social mobility. Alexander suggests we imagine the criminal justice system ‘not as an independent system but rather as a gateway into a much larger system of racial stigmatisation and permanent marginalisation.’ Alexander’s research is focused on the experience of African Americans, but her conclusions arguably extend to the poor in general.
Of course, that’s not to say that prison is full of lovely, innocent people. Grinding poverty and ceaseless oppression can give rise to reprehensible behaviour that happens reprehensibly often. But it’s quite another thing to say that the prison system is a reflection of a just society.
The problem in Australia is not on the same scale as in the US, though the racial dynamic is replicated in respect of Aboriginal and Torres Strait Islanders, who are disproportionately represented in the criminal justice system. But the point still remains. It is politically naïve and irresponsible to seek to make an example of an individual for political purposes by relying on a criminal justice system that structurally serves to disenfranchise the poorest sections of society.
Pistorius, well-resourced as he is, hardly faces such tribulations. But for people caught up in the criminal justice system, sometimes the only hope of avoiding the gateway to permanent marginalisation is the presumption of innocence and the right to a fair trial. This is undermined when these rights are dismissed to make the bigger point that violence against women should not be tolerated.
Equally, vigilantism has no place in a movement calling for an end to oppression. So pre-empting the court process and declaring guilt (or maintaining a judgment of guilt, in spite of a court process to the contrary) should not be the role of feminist writing. The court process, however flawed, is preferable to burning people at the stake.
When we say Pistorius should go down, or Julian Assange should be made an example of, or that OJ Simpson really was a killer (in spite of his acquittal), we think that we can crank the system of state power into a new life, despite it being rusted with injustice and oppressive bias. We start to think that when the state locks people up on a mass scale, or executes them for murdering the mothers of their children, or goes to war on behalf of women forced to live in a repressive regime, this serves some useful purpose. They do not have our best interests at heart; they are reproducing violence on a systemic scale.
That’s not to say that no one should ever go to jail. But it does affect how we frame demands upon the criminal justice system to end violence against women. The point is that we shouldn’t call for the criminal justice system to treat these crimes with the same seriousness as the other crimes in the system, because we will be measuring justice with the wrong yardstick. Equally, we can’t simply say the court system is a patriarchal mess, and that we know someone is really guilty. So doing dispenses with some of the fundamentals of the rule of law and due process.
Part of the problem is that only a disappointingly small amount of public discussion is devoted to the pervasive and debilitating problem of violence against women, usually in the context of celebrity or sensationalised legal cases. Sexism in the reporting of such cases is unacceptable. But worrying about such instances should also not be the main pursuit. Devoting precious energy to them when there are far more useful campaigning objectives – especially in a context where we might materially undermine the presumption of innocence – is wasteful and dangerous.
There are far more imaginative and logical ways to consider seriously the role of the criminal justice system in ending violence against women. There are plenty of early intervention strategies that are consistent with an evidence based approach to the problem. More specifically to the legal process, Bronwyn Naylor from Monash University explains the problem succinctly: ‘the key to making the trial process meaningful to victims is the early acknowledgement of guilt by defendants who are in fact guilty. All of the current features of the trial militate against this.’
Naylor advocates a therapeutic and restorative approach to justice, which involves conferencing with support people, with a prerequisite being an admission of guilt or responsibility for harm suffered by the victim. A facilitator then assists the parties to come to an agreement about reparations for the victim. This reform would mean there was no public and transparent declaration of guilt – no sense the offender was being made an example of – which would ordinarily take place in a court of law. On the other hand, it would put control in the hands of the victim and invites a flexible response to crime, rather than the rigidity of a court process.
At present, such reforms seem distant, at best, not least because they are barely discussed in mainstream media. Instead we have simplistic representations like this, which unhelpfully gloss over complexities. If we were serious about empowering victims of violence, we wouldn’t be seeking to make an example of the latest celebrity accused of a crime, we would instead be demanding the state come up with better ways for women to seek justice for violence committed against them.
Ending violence against women is no easy feat: the economic, social and legal problems women face currently binds many of them to a life of fear, pain and isolation. The role that the penitentiary will play will not be a straightforward one. But that’s no excuse for failing to think through the demands of the movement carefully.