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The Agony & The Ecstasy Of #Metoo: The Hidden Costs Of Reliance On Carceral Politics

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Abstract

Many have considered the conversation sparked by #MeToo as a necessary and overdue interrogation of not only the spectre of common sexual harms in American society, but also the inadequacy of traditional mechanisms of accountability. Against this backdrop, smaller-scale flashpoints have erupted over perceived inadequacy of punishment, such as the successful campaign to recall California judge Aaron Persky from the bench over what many saw as leniency in the widely-publicized case of People v. Turner. This paper analyzes the complex relationship between #MeToo and the carceral state. In arguably the most punitive nation on the planet— particularly when considering the breadth and scope of public post- conviction registries—I argue that seeking to address broad and systemic failures of accountability by advocating for more severe punishment paradoxically undermines the larger goals of #MetToo to the extent that those goals are concerned with effectively challenging systems that perpetuate sexual harms. An approach that harmonizes efforts to prevent sexual harms and bring those who cause harm to account without endorsement of carceral politics is explored.
1
THE AGONY & THE ECSTASY OF #METOO:
THE HIDDEN COSTS OF RELIANCE ON
CARCERAL POLITICS
Guy Hamilton-Smith*
Many have considered the conversation sparked by #MeToo as a necessary
and overdue interrogation of not only the spectre of common sexual harms
in American society, but also the inadequacy of traditional mechanisms of
accountability. Against this backdrop, smaller-scale flashpoints have
erupted over perceived inadequacy of punishment, such as the successful
campaign to recall California judge Aaron Persky from the bench over what
many saw as leniency in the widely-publicized case of People v. Turner.
This paper analyzes the complex relationship between #MeToo and the
carceral state. In arguably the most punitive nation on the planet—
particularly when considering the breadth and scope of public post-
conviction registries—I argue that seeking to address broad and systemic
failures of accountability by advocating for more severe punishment
paradoxically undermines the larger goals of #MetToo to the extent that
those goals are concerned with effectively challenging systems that
perpetuate sexual harms. An approach that harmonizes efforts to prevent
sexual harms and bring those who cause harm to account without
endorsement of carceral politics is explored.
INTRODUCTION
In 2006, Tarana Burke was working as a youth camp director when a
young girl in her care told her of the sexual abuse that she had endured from
her mother’s boyfriend.
1
The experiences stirred Burke, resonating with her
* Legal Fellow, Sex Offense Litigation and Policy Resource Center at the Mitchell Hamline School
of Law. Thanks to many people who provided valuable feedback for this piece, especially Leigh
Goodmark, Brian Frye, Hadar Aviram, Bennet Capers, Alessandro Corda, Cynthia Godsoe, Laura
Simmons, Ben Levin, Stefanie Mundhenk Harrelson, and Alyssa Leader. Thank you also to Kelsey
Finn and the team at Southwestern for their attention to these issues and their assistance with this
paper.
1
. Abby Ohleiser, Meet the Woman Who Coined Me Too10 Years Ago—to Help Women of
Color, CHI. TRIB. (Oct. 19, 2017, 11:55 AM), https://www.chicagotribune.com/lifestyles/ct-me-
Electronic copy available at: https://ssrn.com/abstract=3427857
2 SOUTHWESTERN LAW REVIEW [Vol. 49
own experiences of sexual abuse. She turned that moment into activism and
sought to center the experiences of survivors of sexual violence, particularly
young girls of color, who are often disregarded by society writ large.
2
Burke
coined “Me Too.”
What began in Burke’s apartment took on new dimension in 2017, after
Alyssa Milano turned it into a viral hashtag, #MeToo.
3
Me Too, or #MeToo,
has become something of a cultural shibboleth, a rorschach test of sexual
harm and state power. Contained within it are undeniable truths about our
society: to wit, the commonality of sexual harms, and our collective failure
to effectively address those harms.
Eleven years after Burke breathed Me Too into life, a Santa Clara judge
ordered former California judge Aaron Persky to pay $135,000 in legal fees
to the attorneys behind the effort to recall him from the bench in the wake of
People v. Turner,
4
a criminal case that transformed into a cultural flashpoint.
In Turner, Persky had imposed a sentence for a sexual assault that many
perceived as too lenient:
5
three years of probation with six months to serve
in the county jail, and a lifetime of sex offense registration.
6
When confronted with the disparate treatment and stark disparity in
America’s criminal legal systems, our well-worn response is one of uniquely
American equality: that all should be treated equally harshly
7
—and so it was
too-campaign-origins-20171019-story.html; Tarana Burke, The Inception, JUST BE INC., https://
justbeinc.wixsite.com/justbeinc/the-me-too-movement-cmml (last visited Aug. 16, 2019).
2
. Jim DeRogatis, the Chicago Tribune reporter, who spent years reporting on allegations of
sexual offenses against R. Kelly, once remarked in an interview about his experiences reporting the
case that [t]he saddest fact Ive learned is nobody matters less to our society than young black
women. Nobody. JIM DEROGATIS, SOULLESS: THE CASE AGAINST R. KELLY 237 (2019).
3
. #MeToo: A Timeline of Events, CHI. TRIB. (July 19, 2019, 7:12 PM), https://www.
chicagotribu ne.com/lifestyles/ct-me-too-timeline-20171208-htmlstory.html.
4
. The fees were imposed as a result of a lawsuit that Persky had filed to stop the recall,
alleging that the California Secretary of State should have presided over the recall petition as
opposed to the local election office. The suit was decided against Persky, and thus he was liable
for attorneys fees. Jennifer Wadsworth, Recalled Judge Aaron Persky Asks for Help to Pay Off
$135K in Campaign-Related Legal Costs, SAN JOSE INSIDE, (Dec. 13, 2018, 7:22 AM), https://
www.sanjoseinside.com/2018/12/11/recalled-judge-aaron-persky-asks-for-help-to-pay-off-135k-
in-campaign-related-legal-costs/.
5
. Tracey Kaplan, Ousted Brock Turner Case Judge Implores Supporters to Help Pay
$135,000 Debt, MERCURY NEWS (Dec. 13, 2018, 7:22 AM), https://www.mercurynews.com/
2018/12/11/brock-turner-judge-persky-debt-payoff/.
6
. Tara Golshan, Why the Stanford Sexual Assault Case Has Become a National Flashpoint,
Explained, VOX (Dec. 19, 2016, 3:39 PM), https://www.vox.com/2016/6/7/11866390/brock-turner
-stanford-sexual-assault-explained.
7
. JAMES Q. WHITMAN, HARSH JUSTICE: CRIM INAL PUNISHMENT AND THE WIDENING
DIVIDE BETWEEN AMERICA AND EUROPE (2003) (arguing that due to an absence of an aristocratic
element in American society that we level downand degrade all equally, as opposed to the
European practice of leveling upand extending dignity and leniency to all).
Electronic copy available at: https://ssrn.com/abstract=3427857
2019] THE AGONY & THE ECSTASY OF #METOO 3
that Turner’s jail term triggered a massive backlash that ultimately resulted
in Persky’s removal from the bench. Despite a judicial inquest into Persky’s
handling of the case finding no misconduct, bias, or abuse of discretion, he
was recalled from the bench by a twenty-point popular vote margin.
8
In
addition to the recall, which was spearheaded by Stanford law professor
Michele Dauber,
9
the California legislature passed legislation mandating
prison terms for numerous sexual offenses.
10
While many saw the recall and its aftermath as correcting an injustice, a
closer reading of events that precipitated them and forces that propelled them
suggest a result that sounds less in correcting injustice, and more in
compounding it. While the length of a prison sentence remains the focal
point in how seriously we seek to take the problem of sexual harm and
violence in our society (or, indeed, any problem), this elides both ways in
which carceral responses perpetuate sexual violence, and ways in which
carceral power is beginning to evolve.
In the most punitive democracy on the planet,
11
our culture stands at
something of a crossroads: what if punishment doesn’t work? Increasingly
broad segments of our society are ready to agree that our impulse to
incarcerate and punish is at odds with broader conceptions of justice, and yet
often the sole beneficiaries of this purported grant of mercy are the “non-non-
nons”: people convicted of non-serious, non-violent, and non-sexual
offenses.
12
Beyond the cages themselves, rendered invisible in the calculus
about punishment, are our nation’s increasingly broad and swollen sex
offense (and myriad other) public conviction registries.
13
While these
conditions were regarded as something of a footnote in Turner’s case—they
are arguably harsher than a prison term.
8
. Registrar of Voters, Santa Clara Cty., Recall, Superior Court Judge , RE SULTS
.ENR.CLARITYELECTIONS.COM (July 9, 2018, 1:12 PM), http://results.enr.clarityelection s.com/CA/
Santa_Clara/75369/Web02.207986/#/cid/24.
9
. Kaplan, supra note 5.
10
. A.B. 2888, 2015-16 Leg., Reg. Sess. (Cal. 2016).
11
. Highest to LowestPrison Population Rate, WORLD PRISO N BRIEF, https://www.
prisonstudies.org/highest-to lowest/prison_population_ rate?field_region_taxonom y_tid=All (last
visited Oct. 11, 2019).
12
. Florida recently passed a ballot measure to return to the voting franchise people who had
been convicted of felonies, but the measure expressly excluded peop le who had been convicted of
sexual offenses or murder. Alice Speri, Floridas Amendment 4 Would Restore Voting Rights to
1.4 Million People, INTERCEPT (Nov. 3, 2018, 6:00 AM), https://theinte rcept.com/2018/11/03/
florida-felon-voting-rights-amendment-4/.
13
. See Celia Llopis-Jepsen, Can Registries Cover Too Many Crimes? Kansas Legislation
Suggests a Rollback, KCUR 89.3 (Feb. 20, 2018), https://www.kcur.org/post/can-registries-cover-
too-many-crimes-kansas-legislation-suggests-rollback.
Electronic copy available at: https://ssrn.com/abstract=3427857
4 SOUTHWESTERN LAW REVIEW [Vol. 49
This paper explores the fraught, complicated relationship between social
movements that seek to address sexual harms and the carceral state. In an
area where mass incarceration and state carceral power appear to be
beginning to metastisize from an era of mass-caging to an era of mass-
surveillance, I invite a broader understanding of what punishment is, and the
utility that it has. I argue that our culture is in the midst of two distinct crises
with respect to sexual harms that ultimately reinforce and perpetuate one
another.
The first crisis is one marked by a noted absence: for most sexual harms
in America, there is no formal recognition that harm occurred, no
accountability, and no recompense. To be believed, those who are harmed
are told that they must report what happened to police. The police, in turn,
act as gatekeepers to a criminal legal system that many survivors of sexual
violence experience as being even more traumatic than the harm they are
seeking to report.
14
Simply stated, this is a crisis about accountability for
people who cause harm, and faith in both the ability and legitimacy of the
state to provide it.
If the first crisis is one marked by absence, the second is one of
abundance. We are the most punitive nation on the face of the planet,
particularly when it comes to those who have been accountable for sexual
harms. Outrage over criminal sentences that are perceived as light—while
understandable—also misses the myriad ways in which punitive state power
is evolving, and the effects that has on society. As is apparent, there are broad
segments of our society who do not see this as a crisis at all, but indeed, as a
desirous outcome.
These two crises create something of a perpetual motion machine of
suffering for all actors involved in our criminal legal system in the context of
sexual harm. The searing pain and anger from the first crisis feeds directly
into the second, which in turn, creates massive disincentives for the very
things that victim-survivors
15
are often seeking: accountability, ownership,
and redress. These disincentives then result in more pain, more anger, and
more calls for punishment (or alternately, disbelief of those who make
allegations) in a cultural and legal arms-race that ensures that all are made to
suffer in equal measure.
As we seek to shore up failures of formal accountability with punitive
architecture, the two people who ought to matter the most in our criminal
legal system—the person who caused harm, and the person who was
harmed—tend to figure as little more than props needed to propel a vehicle
14
. See Corey R. Yung, Rape Law Gatekeeping, 58 B.C. L. REV. 205, 219, 231-33 (2017).
15
. Thanks to Abby Honold for suggesting this nomenclature.
Electronic copy available at: https://ssrn.com/abstract=3427857
2019] THE AGONY & THE ECSTASY OF #METOO 5
that we have come to call justice. Whether this vehicle takes us to a place
we want to go is another matter entirely, and a question I invite critical
reflection on.
In Part I, I briefly describe the relationship between sexual harm and the
American carceral state, including the massive expansion of sex offense and
other public conviction registries, placing particular emphasis on the ways in
which institutional actors routinely fail to effectively address sexual harms.
Part II considers the criminal case of People v. Turner—and its volatile
aftermath—as a lens through which to view the larger principles of
accountability and punishment in this context. Part III turns to an application
of those principles to sexual harms in America, and their impacts, suggesting
that even as we seek to take the problem of sexual harms seriously, our efforts
may do more harm than good. Part IV charts a different course, one that
attempts to thread a delicate needle, or at least describe how one might be
threaded, should we seek to resolve an arms race of pain. I then conclude
with an invitation for critical reflection on the outcomes we desire, on the
outcomes we say that we desire, and on whether those are in fact the same
things.
I. “FAIRLY NORMAL AND ROUTINE:” A BRIEF OVERVIEW OF SEXUAL
HARM & CARCERAL RESPONSE
But if the story of sexual violence at Stanford over the last half-century is
to teach us anything, it’s that commotion will only do so much to reform
culture. Although it has dominated campus headlines every few years—
seemingly only after high-profile incidents or series of incidents—and
although new initiatives have been tested each time, the problem of sexual
violence remains an intractable one. Even the attention given toward sexual
violence by the university tends to be reactionary, and it has done little to
affect the cultural norms that perpetuate this problem on campus.
16
You start to wonder, is rape really illegal?
17
The landscape of sexual harms and violence in the United States is
something of a paradox: it is, at the same time, everywhere, and nowhere. It
is everywhere in the sense that many, many people experience some type of
sexual harm in their lifetimes. One out of six boys and one out of four girls
will be sexually abused before reaching adulthood.
18
One out of three
16
. Ruairi Arrieta-Kenna & Roxy Bonafont, Fairly Normal and Routine: 50 Years of Sexual
Violence at Stanford, STAN. POL. MAG., (Jan. 31, 2018), https://stanfordpolitics.org/2018/
01/31/sexual-violence-cover-story/.
17
. Yung, supra note 14, at 237 (statement of Meaghan Ybos).
18
. Get Statistics: Sexualt Assault in the United States, NATL SEXUAL VIOLENCE RESOURCE
CTR., https://www.nsvrc.org/node/4737 (last visited Oct. 11, 2019).
Electronic copy available at: https://ssrn.com/abstract=3427857
6 SOUTHWESTERN LAW REVIEW [Vol. 49
women, and one out of six men, report experiencing some form of sexual
violence in their lifetimes.
19
Despite this pervasiveness, it is nowhere in the sense that for most of
these harms there is no kind of formal accountability.
20
Most sexual offenses
are never reported to authorities.
21
Of those that are reported, most don’t
result in an arrest,
22
and thus, no formal recognition that harm has occurred.
If one were to simply rely on statistics of convictions, one would conclude
that sexual harms are actually relatively rare.
23
While there are certainly high-profile examples where mechanisms
designed to bring people to account seem to have failed in horrifying
ways
24
—these failures give the impression that the system, if it works as it is
designed to work, would not result in these outcomes. Offenses would be
reported, police would investigate, wrongdoers would be prosecuted, and
those prosecutions would result in jail terms. In other words, many are left
with the impression these cases are simply aberrations.
This impression is largely a false one. To the contrary, outcomes where
our mechanisms of accountability fail might be more properly described as
normal and routine: [u]ltimately, police are the largest obstacle to the
19
. Id.
20
. An important consideration to flag is that the only kind of accountability that is on offer in
our system is that which is provided by way of criminal or pseudo-criminal processes which often
undermine and are conflated with personal accountability––that is to s ay, the person who caused
harm taking ownership of that harm. See DANIELLE SERED, UNTIL WE RECKON: VIOLENCE, MASS
INCARCERATION, AND A ROAD TO REPAIR 13 (2019).
21
. CALLIE MARIE RENNISON, BUREAU OF JUSTICE STATISTICS, RAPE AND SEXUAL
ASSAULT: REPORTING TO POLICE AND MED. ATTENTION, 1992-2000, at 1-2 (2002),
https://www.bjs.gov/content/pub/pdf/rsarp00.pdf. Underreporting patterns might be changing
(perhaps in response to wider awareness of sexual harm in society), as data from the 2017 National
Crime Victimization Survey indicated that sexual violence was reported to police at approximately
80% of the rate of violent crime more generally, though these numbers declined in 2018. RACHEL
E. MORGAN & GRACE KENA, BUREAU OF JUSTICE STATISTICS, CRIMINAL VICTIMIZATION, 2018,
at 8 tbl. 4 (2019), https://www.bjs.gov/content/pub/pdf/cv18.pdf.
22
. The Criminal Justice System: Statistics, RAINN, https://www.rainn.org/statistics/criminal
-justice-system (last visited Aug. 23, 2019).
23
. See id.
24
. For example, Jeffrey Epstein avoided far more serious criminal consequences for sexual
abuse of underage girls and sex trafficking by way of a much-maligned non-prosecution agreement
that he entered into with the then Assistant United States Attorney for the Southern District of
Florida, Alex Acosta. Julie Brown, How a Future Trump Cabinet Member Gave a Serial Sex Abuser
the Deal of a Lifetime, MIAMI HERALD (Nov. 28, 2018), https://www.
miamiherald.com/news/local/article220097825.html. Epstein subsequently died by suicide while
in custody in the Manhattan Detention Center, after the United States Attorney for the Southern
District of New York filed criminal charges against him. Tom Winter et al., Jeffrey Epstein Died
by Suicide in Manhattan Jail Cell, Autopsy Report Says, NBC NEWS (Aug. 16, 2019 , 1:38 PM),
https://www.nbcnews.com/news/us-news/jeffrey-epstein-died-suicide-manhattan-jail-ce ll-medical
-examiner-says-n1041571; see also Yung, supra note 14.
Electronic copy available at: https://ssrn.com/abstract=3427857
2019] THE AGONY & THE ECSTASY OF #METOO 7
prosecution and conviction of rapists in the United States. Police disbelieve
rape victims far more often than the public and other agents involved in rape
investigations.”
25
Police routinely fail to adequately investigate allegations of sexual harm,
leading—amongst other things—to the creation of a rapekit “backlog.”
26
Suffice it to say, national clearance rates for rape cases hover around the 30%
mark.
27
The popular narrative for why this is the case is because many rape
cases boil down to “he-said-she-said allegations,” however, there are more
systemic forces at work. Police routinely administratively “clear” rape cases
for a variety of reasons—including to bolster numbers for crime reporting
data.
28
As law professor Corey Yung and others have argued, police have
traditionally functioned as hostile gatekeepers, even going so far as to
threaten (and indeed, actually charge) victim-survivors with false reporting.
29
Investigatory failures in police departments stem from a variety of
sources, which includes poor training, inadequate staffing amongst sex
crimes units (and thus also poor morale amongst investigators), and
manipulating stats to give the appearance of solving more rape offenses than
are actually solved.
30
These well-documented phenomena in American law
enforcement are at least arguably responsible for the reason why a bulk of
rape complaints are either (a) never made or (b) never make it to later stages
in the criminal legal process.
31
In short, there exists an undeniable failure of accountability on the part
of our mechanisms of institutional accountability
32
—police routinely fail to
appropriately respond to and address complaints, leading to a widespread
25
. Yu n g , supra note 14, at 209.
26
. This term, however, is quite misleading. See Meaghan Ybos & Heather Marlowe, Five
Wa ys th e M ed i a-Driven Rape Kit BacklogNarrative Gets it Wrong, THE APPEAL (Mar. 5, 2018),
https://theappeal.org/five-ways-the-media-driven-rape-kit-backlog-narrative-gets-it-wrong-
99a02956df06/.
27
. Jim Mustian & Michael R. Sisak, Despite #MeToo, Clearance Rate for Rape Cases at
the Lowest Point Since the 1960s, USA TODAY (Dec. 27, 2018, 12:41 PM), https://www.usatoday.
com/story/news/nation/2018/12/27 /rape-cases-clearance-rate-hits-low-despite-metoo/
2421259002/.
28
. Corey Rayburn Yung, How to Lie with Rape Statistics: Americas Hidden Rape Crisis, 99
IOWA L. REV. 1197, 1200-04 (2014) (detailing at least forty-six police departments intentionally
manipulating rape data by undercounting rapes within their respective jurisdictions, classifying rape
cases as lesser offen ses and thereby exempting them from mandatory reporting of the statistics, or
failing to make written record of reported rape complaints).
29
. Yung, supra note 14, at 211.
30
. Yung, supra note 28, at 1200-04.
31
. Yung refers to this phenomenon as the crime funnel. Yung, supra note 14, at 218.
32
. Arguably, these failures have also fueled some of the more punitive aspects of #MeToo,
cancel culture,informal shaming, etc. Stated differently, if people cannot have accountability by
way of official channels, they will seek it elsewhere.
Electronic copy available at: https://ssrn.com/abstract=3427857
8 SOUTHWESTERN LAW REVIEW [Vol. 49
belief that reporting would likely be futile, and further leave people who
commit acts of sexual violence free to continue with relative impunity.
Examples of this abound, but Meaghan Ybos is particularly emblematic.
Ybos was raped at knifepoint by Anthony Alliano in 2003, and despite
promptly reporting the rape, the rape kit would not be tested by Memphis PD
for another nine years.
33
During those nine years, Alliano would go on to
commit at least an additional five attacks against Memphis-area women.
34
While Ybos’ experiences are certainly horrific, they are far from unique, and
instead, are emblematic of a pattern of general police hostility toward rape
victims.
Despite these phenomena being well-documented and consistent
throughout jurisdictions, relatively little attention is paid to their true natures.
These basic structural and investigatory failures are often parlayed into calls
for extraordinary expansion of state power, additional funding, or fewer
rights for criminal defendants, as opposed to holding law enforcement and
elected officials to account for delivery of services to victim-survivors.
These failures, it should be pointed out, appear to be much more
pronounced when it comes to communities of color, or individuals who are
not “perfect victims”
35
(despite communities of color experiencing higher
rates of sexual violence than white communities).
36
This racial framing is
also reflected in our legislation—the Adam Walsh Act, passed in 2006, for
example, names seventeen victims (eighteen, if you include Adam Walsh
himself) in its preamble as justification for the necessity of the legislation––
all of whom are white (and all, save one, were attacked by strangers).
37
In
other words, our legislation reflects this model of a “perfect victim”: a white,
innocent woman or child and the prototypical offender is a violent stranger.
This framing obfuscates the majority of sexual harms in America, and
thereby perpetuates it by diverting awareness, resources, and interventions.
38
If the foregoing discussion of reporting and official hostility are
considered to be evaluating the “upstream” of our criminal legal processes,
33
. Yu n g , supra note 14, at 237.
34
. Id. at 237-38.
35
. The term refers to women who are victimized and comport with wider cultural rape myths
and thus more likely to be believed (e.g., white, attacked by a stranger, dressed conservatively, not
intoxicated). See Jan Jordan, Perfect Victims, Perfect Policing? Improving Rape Complainants
Experiences of Police Investigations, 86 PUB. ADMIN. 699, 703 (2008).
36
. E.g., Where We Stand: Racism and Rape, NATL ALLIANCE TO END SEXUALVIOLENCE,
https://www.endsexualviolence.org/where_we_stand/racism-and-rape/ (last visited Oct. 11, 2019).
37
. 34 U.S.C. § 20901(1)-(17) (Su pp. V 2017).
38
. This is, of course, not to say that perfect victimsare not also people who have been
harmed tremendously. But rather that their elevation by policymakers as paradigmatic examples of
American sexual violence blinks the realities of that violence.
Electronic copy available at: https://ssrn.com/abstract=3427857
2019] THE AGONY & THE ECSTASY OF #METOO 9
most of our focus and solutions are focused “downstream”—that is to say,
on criminal (and pseudo-criminal)
39
trials, constitutional rights afforded to
defendants, sentence length, and public conviction registries.
40
This is so,
even despite upstream processes that are arguably much more important
toward the goals of deterring criminal conduct and holding people
accountable for conduct that has occurred, as opposed to the punishment that
figures so largely downstream.
Perhaps by way of seeking absolution for these failures, America is the
most punitive nation on the face of the planet, particularly at the intersection
of punishment for sexual harms. While we cage more people per capita than
any other nation on the planet, ours is not just a numbers game. American
punishment is particularly degrading and brutal, though this has come to be
expected as a central feature of punishment itself (as opposed to simply the
loss of autonomy).
41
With respect to the criminal legal system writ large, there is widespread
agreement that we live in an era marked by a “crisis of punishment.”
42
While
much noise has been made about mass incarceration being the result of the
war on drugs, most people who are incarcerated are incarcerated for violent
offenses.
43
Observations about the severity of American punishment are
underscored when talking about people convicted of sex offenses: they are
subjected to some of the starkest legal exceptionalism in the context of an
already exceptional criminal legal system. At the federal level, the class of
offenses that are the most harshly punished are sexual offenses.
44
Importantly, we also punish people convicted of sexual offenses by sending
them to places that are generally awash in sexual violence themselves, with
little acknowledgement of this fact.
45
Generally, state courts are also punitive
39
. Such as Title IX proceedings on college campuses.
40
. Yung, supra note 14, at 235.
41
. Joshua Kleinfeld, Two Cultures of Punishment, 68 STAN. L. REV. 933, 1036 (2016).
42
. Id.
43
. JOHN F. PFAFF, LOCKED IN: THE TRUE CAUSES OF MASS INCARCERATIONAND HOW
TO ACHIEVE REAL REFORM 5-6 (2017).
44
. Guy Hamilton-Smith, New DOJ Report Demonstrates Stunning Disingenuity on Cases
Involving Sexual Exploitation of Children, THE APPEAL (Jan. 17, 2018), https:// theappeal.org/new-
doj-report-demonstrates-stunning-disingenuity-on-cases-involving-sexual-exploitation-of-
b44a0c444e5d/.
45
. In addition, this form of rape is often seen as just desserts punishment. Bennet Capers,
Real Rape Too, 99 CALIF. L. REV. 1259, 1301 (2011). A recent example of this was seen during
Larry Nassars sentencing for numerous sex offenses, where Michigan Judge Rosemarie Aquilina
mused about Nassar being raped in prison. Graeme Wood, Where Nassars Judge Went Wron g,
ATLANTIC (Jan. 24, 2018) https://www.theatlantic.com/politics/archive/2018/01/nassar-judge/
551456/.
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10 SOUTHWESTERN LAW REVIEW [Vol. 49
in this context in that state judges are traditionally elected positions, and as
research has demonstrated, tend to be very sensitive to populist sentiment
when it comes to criminal cases.
46
Length of imprisonment has traditionally been our virtually solitary
measure of justice,
47
but this elides some of the harshest punishments in the
American legal arsenal. Despite being treated as footnotes in cases of sexual
harm, public sex offense registration is arguably harsher than a jail term.
Modern-era sex offense registration began to take its shape in the early
1990s. Federal and state legislation was quickly passed in response to high-
profile cases of child abduction and murder, establishing (at first private, then
public) notification of people convicted of sex offenses.
48
Soon, every state
in the nation had its own registry, each with its own set of regulations and
requirements—with which failure to comply generally meant new felony
prosecutions.
49
These new legal regimes sparked court challenges, which led to a pair
of 2003 United States Supreme Court cases that denied essential
constitutional protections to the people on them.
50
The cases—Smith v. Doe
and Connecticut Department of Public Safety v. Doe—had the combined
effect of issuing a blank constitutional check to states: registration was
declared non-punitive and necessary on the basis of purported
dangerousness,
51
but rendered any inquiry into actual risk irrelevant.
52
The
combined impact of these cases rendered the monstrous nature of the people
on these lists both presumed and irrefutable.
Thus began a nationwide race-to-the-bottom in an experiment with
punitive exceptionalism that has been largely unmatched in the entirety of
46
. See KATE BERRY, BRENNAN CTR. FOR JUSTICE AT NYU SCH. OF LAW, HOW JUDICIAL
ELECTIONS IMPACT CRIMINAL CASES 7 (2015), https://www.brennancenter.org/sites/ default/files
/2019-08/Report_How_Judicial_Elections_Impact_Criminal_Cases.pdf.
47
. See Benjamin Levin, Mens Rea Reform and its Discontents, 109 J. CRIM. L. &
CRIMINOLO GY 491, 535 (2019).
48
. The federal Jacob Wetterling Act originally contemplated private law-enforcement
registries. The subsequent Megans Law mandated public notification, which soon became the
national standard.
49
. See Sex Offender Enactments Database, NCSL.ORG, http://www.ncsl.org/research/civil-
and-criminal-justice/sex-offender-enactments-database.aspx (last visited Sept. 4, 2019).
50
. Smith v. Doe, 538 U.S. 84, 105 (2003); Conn. Dept Pub. Safety v. Doe, 538 U.S. 1, 8
(2003).
51
. Ira Mark Ellman & Tara Ellman, Frightening and High: The Supreme Courts Crucial
Mistake About Sex Crime Statistics, 30 CONST. COMMENT. 495 (2015).
52
. Smith dealt with the Ex Post Facto clause of the United States Constitution and justified
registration, in part, on the basis of the frightening and highrisk of re-offending. Smith, 538 U.S.
at 105. Connecticut Department of Public Safety, in turn, rejected the argument procedural due
process mandated a hearing on a persons dangerousness before a state could include them on a sex
offense registry. 583 U.S. 1 (2003).
Electronic copy available at: https://ssrn.com/abstract=3427857
2019] THE AGONY & THE ECSTASY OF #METOO 11
our legal system.
53
What began as a relatively simple list soon morphed into
something akin to a prison-sans-bars.
54
If America had a civil death penalty,
putting people on its sex offense registries would be it.
55
A legislative
“ratchet”
56
combined with public animus has resulted in a patchwork of legal
requirements that have become increasingly untethered from considerations
of public safety,
57
evolving into what some scholars have begun to call
“super-registration” schemes.
58
Take, for example, what was required of a
mentally-challenged juvenile defendant in Ohio in 2012:
You are required to register in person with the sheriff of the county in which
you establish residency within three days of coming into that county, or if
temporarily domiciled for more than three days. If you change residence
address you shall provide written notice of that residence change to the
sheriff with whom you are most recently registered and to the sheriff in the
county in which you intend to reside at least 20–days prior to any change of
residence address. You are required to provide to the sheriff temporary
lodging information including address and length of stay if your absence
will be for seven days or more. Since you are a public registry qualified
juvenile offender registrant you are also required to register in person with
the sheriff of the county in which you establish a place of education
immediately upon coming to that county. You are also required to register
in person with the sheriff of the county in which you establish a place of
employment if you have been employed for more than three days or for an
aggregate of 14 days in a calendar year. Employment includes voluntary
services. As a public registry qualified juvenile offender registrant, you
also shall provide written notice of a change of address or your place of
employment or your place of education at least 20 days prior to any change
and no later than three days after the change of employment. [Y]ou shall
provide written notice within three days of any change in vehicle
information, e-mail addresses, internet identifiers or telephone numbers
registered to or used by you to the sheriff with whom you are most recently
53
. Guy Hamilton-Smith, Sex Registries as Modern-Day Witch Pyres: Why Criminal Justice
Reform Advocates Need to Address the Treatment of People on the Sex Offender Registry, THE
APPEAL (Dec. 12, 2017) https://theappeal.org/sex-registries-as-modern-day-witch-pyres-why-
criminal-justice-reform-advocates-need-to-address-the-aca3aaa47f03/.
54
. Despite their passive name, registries are much more than just registries. They are public
lists p lus a myriad of laws, ba nishing people subject to them from living or eve n bein g present in
certain areas and imposing numerous affirmative obligations on pain of felony conviction.
55
. Hamilton-Smith, supra note 53.
56
. Meaning that legislatures only ever add new restrictions or make existing ones more
onerous––never (or, rarely) the other way around.
57
. Or, to the extent they ever were. Research, for example, indicates that there is little
association between failing to registerand sexual reoffending. Levenson et al., Failure to
Register as a Sex Offender: Is it Associated with Recidivism?, 27 JUST. Q. 305, 326 (2010).
58
. Catherine L. Carpenter & Amy E. Beverlin, The Evolution of Unconstitutionality in Sex
Offender Registration Laws, 63 HASTINGS L. J. 1071, 1079 (2012).
Electronic copy available at: https://ssrn.com/abstract=3427857
12 SOUTHWESTERN LAW REVIEW [Vol. 49
registered. [Y]ou are required to abide by all of the above described
requirements for your lifetime as a Tier III offender with in person
verification every 90–days. That means for the rest of your life every three
months you’re going to be checking in with [the] sheriff where you live or
work or both. Failure to register, failure to verify on the specific notice and
times as outlined here will result in criminal prosecution.
59
Given the complexity of these schemes, it is perhaps not surprising that
the most common reason in many jurisdictions that people on registries
return to prison––not for a new sexual offense, but rather for failure to abide
by the many technical requirements imposed on them by the registries.
60
Penalties for these failures are severe: distinct from parole violations
(sometimes referred to as technical violations), these are considered new
felony offenses.
61
As such, they can carry with them mandatory minimum
terms of imprisonment or expose people to “three-strikes” type sentencing
enhancements. Failing to abide by these requirements can mean tolling or
even resetting of registration periods,
62
meaning more opportunities for
failure, and more opportunities for imprisonment. In addition to state-
sanctioned punishment, presence on a sex offense registry also exposes
people to vigilantism, perpetual homelessness due to housing banishment
laws and landlords unwilling to rent, joblessness, and harassment of spouses
and children.
63
Arguably, these legal regimes seek to accomplish what our
constitution would otherwise expressly prohibit: increased and continuous
punishment for people who have already been held accountable for an
offense.
In recent years, the judiciary has begun to push back. Judges have not
only found that these registries have become punitive,
64
but that they go so
far as to violate the federal constitution’s prohibition on cruel and unusual
59
. In re C.P., 131 Ohio St. 3d 513, 515-16, 2012-Ohio-1446, 967 N.E.2d 513, 515-16.
60
. Grant Duwe & William Donnay, The Effects of Failure to Register on Sex Offender
Recidivism, 37 CRIM. JUST. & BEHAV. 520, 521 (2010).
61
. In every jur isdiction that this author is aware of, failing to comply is a felony offense. The
Adam Walsh Act of 2006, which sets the federal standards for the states, mandates that failing to
register is a felony offense if states wish to receive Byrne block grant funds. 34 U.S.C. § 20913(e)
(Supp. V 2017).
62
. U.S. Dept of Justice, Significant Changes to SORNA Guidelines, SMART.GOV, https://
www.smart.gov/pdfs/sorna_significant_changes.pdf (last visited Aug. 21, 2019).
63
. Kelly K. Bonnar-Kidd, Sexual Offender Laws and Prevention of Sexual Violence or
Recidivism, 100 AM. J. PUB. HEALTH 412-19 (2010). It is worth observing here that people with
resources will in many ways be able to insulate themselves from the worst impacts of registries––
such as not being able to find housing or meet their economic needs (e.g., Jeffrey Epstein).
64
. Does #1-5 v. Snyder, 834 F.3d 696, 704-05 (6th Cir. 2016).
Electronic copy available at: https://ssrn.com/abstract=3427857
2019] THE AGONY & THE ECSTASY OF #METOO 13
punishments—a legal conclusion virtually unheard of outside of the context
of death penalty litigation.
65
In addition to these deepening punitive qualities, registries have also
come to impact more and more people and their families. Now, there are
nearly one million people on them,
66
nearly double the 2005 figure.
67
Periods
of registration are lengthy, sometimes for life, and thus it seems likely that
these figures will only continue to increase.
As with the generally racially disparate impact of the criminal-legal
system writ large, public conviction and sex offense registries
disproportionately impact people of color.
68
Additionally, people of color
are more likely to be classified into higher “risk tiers”
69
than white
counterparts,
70
which tends to mean lengthier periods of registration and an
increase in the variety of requirements (and, thus, an increase in the number
of opportunities to run afoul of those requirements and return to prison,
assuming that they are ever allowed to leave at all).
71
Sex offense registries and their impact bear discussion here for several
reasons, but amongst them is that a discussion of sexual harms, institutional
responses, and punitiveness is all undergirded with the assumption that our
overall goal here is to prevent sexual harm from happening, and effectively
respond to harms that have transpired. To the extent these are our goals, there
are compelling reasons to believe that the application of registries, in
particular, perpetuate the very harms that they are supposed to vanquish.
Scholars have effectively criticized sex offense registries as a type of
patriarchal retaliation for early feminist efforts to reform rape law.
72
Our
collective inability, then, to apprehend their true natures (both in terms of
their punitive impact, but as well as their ineffectiveness at preventing sexual
65
. Millard v. Rankin, 265 F. Supp. 3d 1211, 1231 (D. Colo. 2017).
66
. Steven Yoder, Why Sex Offender Registries Keep Growing Even as Sexual Violence Rates
Fall, THE APPEAL (July 3, 2018), https://theappeal.org/why-sex-offender-registries-keep-growing-
even-as-sexual-violence-rates-fall/.
67
. Trevor Hoppe, Punishing Sex: Sex Offenders and the Missing Punitive Turn in Sexuality
Studies, 41 L. & SOC. INQUIRY 573, 575 (2016).
68
. Id.
69
. Generally, tiering has very little to do with an individuals risk or needs, but rather it is
only related to the title of the offense that they had been convicted of.
70
. Bobbie Ticknor & Jessica J. Warner, Evaluating the Accuracy of SORNA: Testing for
Classification Errors and Racial Bias, CRI M. JUST. POLY REV. 1, 5 (2018).
71
. In states with housing banishment laws, people convicted of sex offenses are often not
allowed to leave prison until they are able to secure legalhousing––a feat which is often
impossible for those who lack resources or connections on the outside. See Murphy v. Raoul, 380
F. Supp. 3d 731, 764 (N.D. Ill. 2019).
72
. See Rose Corrigan, Making Meaning of Megans Law, 31 L. & SOC. INQUIRY 267, 308
(2012).
Electronic copy available at: https://ssrn.com/abstract=3427857
14 SOUTHWESTERN LAW REVIEW [Vol. 49
harm) complicates our collective efforts to address the problem of sexual
violence in our society.
In other words, how we understand a problem necessarily suggests its
solution. If our collective understanding of the problem of sexual violence
is that the culprits are recidivistic predators, then the solutions are
banishment––either actual, as is the case with imprisonment, or constructive,
as is the case with registries. However, this framing badly misapprehends
the realities of sexual harm, and thus undermines our efforts to address it.
Equally as important, public conviction registries such as sex offense
registries represent an important vector through which the discharge of state
power and carceral economics is beginning to evolve. As discussed above,
there are now approximately a million people on sex offense registries alone
(to say nothing of the other public conviction registries). Given their
trajectory, long registration periods, and few opportunities for exit,
73
it is not
unreasonable to predict that one day there might be more people on public
conviction registries than in prison in America. Private corporations are
rapidly capitalizing on registries, introducing a profit motive into our system
of punishment in the same way private prisons (and the privatization of
services provided to public prisons)
74
have, though in ways that much fewer
people are even aware of.
75
II. MIDNIGHT IN THE GARDEN OF PERSKY AND TURNER
Some are shocked at how short [Turner’s] sentence is. Others who are more
familiar with the way sexual violence has been handled in the criminal
justice system are shocked that he was found guilty and served any time at
all. What do you think?
76
73
. Wayne A. Logan, Database Infamia: Exit from the Sex Offender Registries, 2 WIS. L. REV.
219, 224-25 (2015).
74
. See Victoria Law, Captive Audience: How Companies Make Millions Charging Prisoners
to Send an Email, WIRED (Aug. 3, 2018, 7:00 AM), https://www.wired.com/story/jpay-securus-
prison-email-charging-millions/.
75
. For example, one company, OffenderWatch now has contracts in roughly half of the states
to operate public conviction registries and are selling their services to the general public. Faith
King, State Sheriffs Encouraging Parents to Download New Sex Offender Watch App, KALB (Oct.
23, 2019, 6:52 PM), https://www.kalb.com/content/news/Louisiana-Sheriffs-encouraging-parents-
to-download-new-sex-offender-watch-app-563734711.html.
76
. Lisa Ryan, Brock Turner Is Used as the Example for a Rapist in This New Textbook, THE
CUT (Sept. 13, 2017), https://www.thecut.com/2017/09/brock-turner-criminal-justice-rape-
textbook.html.
Electronic copy available at: https://ssrn.com/abstract=3427857
2019] THE AGONY & THE ECSTASY OF #METOO 15
Shortly after midnight, an unknown male approached the Santa Clara
County Sheriff’s deputies from behind, signaling for their attention,
exclaiming that they have him pinned to the ground.
77
The deputy, turning his attention from the unconscious woman laying
on the ground, sought clarification—who? “They said it was the guy who
did that,” he replied, pointing to the woman.
78
The woman—Chanel Miller—
was partially nude and covered in pine needles, and would soon become
known around the world as Emily Doe.
79
Before deputies were dispatched, two Swedish students studying at
Stanford happened to be riding on a nearby bike path and observed what they
first believed to be a couple—Turner and Miller—having sex.
80
One of the
students realized that Miller did not appear to be conscious, and they
intervened—chasing Turner a short distance and tackling him to the ground
until authorities arrived.
81
Thus set in motion the events that would become People v. Turner.
While Turner was ostensibly a criminal-legal vehicle through which to
adjudicate an offense that was committed by Turner against Miller, that
vehicle would soon experience a violent collision with mass media, politics,
and an unmistakably carceral vision of justice that would become seared onto
the public’s consciousness.
The initial felony complaint filed against Turner contained five counts
for various offenses, including two counts of rape,
82
though the rape charges
were later dismissed due to a lack of evidence that penetration had occurred.
83
Turner was indicted in Santa Clara County Circuit Court, and Santa Clara
jurist Aaron Persky drew the case.
84
Turner elected to proceed to trial.
The evidence adduced at the trial was that both Turner and Miller had
attended a party at the Kappa Alpha fraternity house that had begun the
77
. Probation Report at 3, People v. Br ock Turner, No. H043709, 2018 WL 3751731 (Cal. Ct.
App. Aug. 8, 2018), https://assets.documentcloud.org/documents/2858997/Probation-officer-s-
report-in-Brock-Turner-case.pdf.
78
. Id.
79
. Id at 2. Miller was known as Emily Doe, as her identity was shielded in the media as the
victim of a sexual assault. Subsequent to the assault, the trial, and the recall, Chanel Miller wrote a
book about her experiences. In keeping with her decision to tell her story publicly, I refer to her by
her name here. See generally CHANEL MILLER, KNOW MY NAME: A MEMOIR (2019).
80
. Id. at 4.
81
. Id.
82
. Felony Complaint at 2-3, People v. Turner, No. B1577162 (Cal. Super. Ct. filed Jan. 28,
2015), https://assets.documentcloud.org/documents/1532973/complaint-brock-turner.pdf.
83
. Michael Vitiello, Brock Turner: Sorting Through the Noise, 49 UNIV. PAC. L. REV. 631,
637 (2018).
84
. Id.
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16 SOUTHWESTERN LAW REVIEW [Vol. 49
previous evening, and both had consumed large amounts of alcohol.
85
Turner
admitted sexual activity with Miller, but believed it was consensual, and
denied that Miller was not conscious.
86
Miller’s testimony rejected Turner’s
version of events, as she testified that she had no recollection of what
happened, and that whatever Turner did was without her consent.
87
A jury found Turner guilty on all counts.
88
As is customary practice (in
both Santa Clara County and elsewhere), the county probation department
prepared a report that would summarize various aspects of the case and
ultimately recommend a sentence for Turner.
89
Amongst the items contained in the report were statements both by
Turner, as well as Miller. Turner, for his part, stated to the probation officer
preparing the report that he felt remorse for both the offense, as well as the
pain that Miller experienced as a result of having to go through the trial
process.
90
Miller also expressed her myriad emotions regarding both the
harm that Turner had caused her, as well as the resulting trial:
I still feel a lot of anger because of what he put me through at trial. I want
him to be sorry and express remorse. He attacked my personal life in
whatever way possible and in the end, it didn’t work. I don’t experience
joy from this. I don’t feel like I won anything. It was just the anger of
hearing what he said in Court. It was devastating. I want him to know it
hurt me, but I don’t want his life to be over. I want him to be punished, but
as a human, I just want him to get better. I don’t want him to feel like his
life is over and I don’t want him to rot away in jail; he doesn’t need to be
behind bars.
91
The sixteen-page report ultimately concluded, based on the assessment
of a variety of factors, that “a moderate county jail sentence, formal
probation, and sexual offender treatment is respectfully recommended.”
92
At
the sentencing hearing, Persky heard arguments both by the prosecutor’s
office as well as by Turner’s attorneys.
93
85
. Id. at 632.
86
. Id.
87
. Id. at 648.
88
. Verdict of the Jury, Pe ople v. Turner, No. B1577162 (Cal. Super. Ct. filed Mar. 30, 2016),
2016 WL 3442307.
89
. Vitiello, supra note 83.
90
. Probation Report at 7, People v. Turner, No. B1577162 (Cal. Super. Ct. filed June 2, 2015),
https://assets.documentcloud.org/documents/2858997/Probation-officer-s-report-in-Brock-Turner-
case.pdf.
91
. Id. at 5.
92
. Id. at 12.
93
. Reporters Transcript of Proceedings, People v. Turner, No. B1577162 (Cal. Super. Ct.
June 2, 2016), http://www.documentcloud.org/documents/2860659-People-v-Brock-Turner-
Sentencing-Hearing-6-2-2016.html.
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2019] THE AGONY & THE ECSTASY OF #METOO 17
Perhaps the most well-known aspect of Turner’s sentencing, however,
was Chanel Miller’s powerful victim impact statement.
94
Miller’s 12,000-
word statement went viral,
95
being shared more than 11 million times in four
days. Stanford law professor Michele Dauber, who would later lead the
charge to remove Persky from the bench, referred to Miller’s victim impact
statement as “the manifesto of the Me Too movement.”
96
Persky sentenced Turner to three years of probation with six months in
jail, as well as a lifetime of sex offense registration, which was both
consistent with the recommendation of the probation officer’s report,
California state law, as well as Persky’s established practice.
97
Turner’s
sentence immediately sparked a firestorm and an organized effort to recall
Persky from the bench under an idiosyncratic feature of California law.
The Recall Aaron Persky Campaign formed, with Stanford law
professor Michele Dauber as its figurehead, cast itself as a cause célèbre, a
referendum on sexual assault in America, and our undeniably bad track
record with addressing it.
98
As the recall campaign began to get underway, many observers were
troubled by the way in which the campaign appeared to have slanted many
of the facts of both People v. Turner, and Persky’s record as a judge in an
apparent ends-justify-the-means political effort.
99
For example, Persky was
praised by prosecutors and defense attorneys alike for being a fair jurist.
100
The Santa Clara District Attorney’s Office—the entity that prosecuted
Turner—despite its expressed disagreement with the sentence Turner
received, staunchly opposed the effort to recall Persky from the bench.
101
A
94
. Katie J.M. Baker, Heres the Powerful Letter the Stanford Victim Read to Her Attacker,
BUZZFEED NEWS (June 3, 2016, 4:17 PM), https://www.buzzfeednews.com/article/katiejmbaker/
heres-the-powerful-lette r-the-stanford-victim-read-to-her-ra#.xf2YDd8Xv .
95
. Julia Ioffe, When the Punishment Feels Like a Crime, HUFFPOST: HIGHLINE (June 1,
2018), https://highline.huffingtonpost.com/articles/en/brock-turner-michele-dauber/.
96
. Id.
97
. Vitiello, supra note 83.
98
. See supra note 10 and accompanying text.
99
. See Vitiello, supra note 83, at 638-39; see also Press Release, Commn on Judicial
Performance, Commission on Judicial Performance Closes Investigation of Judge Aaron Persky
(Dec. 19, 2016), https://cjp.ca.gov/wp-content/uploads/sites/40/2016/08/Persky_Explanatory_
Statement_12-19-16.pdf.
100
. Paul DeBenedetto, Santa Clara County Public Defender Explains What Judge Perskys
Recall Means for His Clients, THE APPEAL (June 11, 2018), https://theappeal.org/santa-clara-public
-defender-persky-recall/.
101
. News Re lease, Cty. of Santa Clara Office of the Dist. Attorney, DA Makes Statement on
Brock Turner Sentencing (June 6, 2016), https://www.sccgov.org/sites/da/newsroom/newsreleases
/Pages/NRA2016/DA-on -Turner-Sentence.aspx.
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18 SOUTHWESTERN LAW REVIEW [Vol. 49
group of law professors also signed onto a letter, opposing the recall effort.
102
Indeed, in the wake of Persky’s recall, members of the Santa Clara criminal
bar spoke out against the recall—both defense attorneys and prosecutors.
103
The California Commission on Judicial Performance evaluated the
complaints that the recall campaign lodged against Persky’s supposed bias
and abuse of discretion, though found that he behaved entirely within the
bounds of the law.
104
This is to say nothing of the impact of a judicial recall, discussed more
below. As law professor Michael Vitiello points out in Sorting Through the
Noise, even if one thinks that the custodial aspect of Turner’s sentence was
too lenient, a judicial recall poses distinct problems:
105
in short, that harsher
sentencing practices would generally impact defendants that look nothing
like Turner, nor have access to his resources and privilege.
The facts of Turner, Persky’s record, and concerns voiced about inviting
populist political anger into the criminal process, however, mattered
relatively little to the wider media narrative and, importantly, to voters.
Persky was ousted by a twenty-point margin.
106
People v. Turner, in addition
to the judicial recall, led to the passage of new mandatory sentencing laws
for sexual assault.
107
The recall and the legislation were both signals that, to take the problem
of rape and sexual assault seriously, we must take it seriously, which in
America has traditionally meant being faced with a problem, and America
“reach[ing] into their culture and pull[ing] out the concept of evil and the
concept of a cage.”
108
As Miller reflected in her book, she––at least initially
–viewed the sentence that Turner had received as a referendum on her worth
as a person.
109
Thus it is clear that campaigns like Recall Persky, and the carceral logic
that they appeal to, sought to make a difference in cases of rape and sexual
assault by way of longer criminal sentences. After all, American culture is
one that has comparatively few tools to contend with social ills or
interpersonal harm aside from the criminal legal system, and there are few
ways for observers to know how “well” the system is working outside of
102
. Elena Kadvany, Law Professors Voice Opposition to Persky Recall, PALO ALTO ONLINE
(Aug. 21, 2017, 8:26 AM), https://www.paloaltoonline.com/news/2017/08/18/law-professors-voice
-opposition-to-persky-recall.
103
. DeBenedetto, supra note 100.
104
. Press Release, Commn on Judicial Performance, supra note 99.
105
. Vitiello, supra note 83, at 632.
106
. See supra note 8.
107
. See supra note 10.
108
. Kleinfeld, supra note 41, at 1026.
109
. MILLER, supra note 79, at 242-43.
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2019] THE AGONY & THE ECSTASY OF #METOO 19
sentence length. Indeed, in the federal system, it is codified that sentence
length is meant to—inter alia—“reflect the seriousness of the offense.”
110
While it is more or less assumed that longer sentences mean more
justice, the reality is likely more complicated, at least to the extent that our
conception of justice is concerned with effectively preventing sexual harm
and holding people accountable for that harm.
III. THE AGONY
Today, I am every woman.
We are the official campaign to recall Judge Aaron Persky—an all-
volunteer operation. It’s clear we need judges who understand sexual
assault and violence against women and take it seriously. It’s up to us, the
voters, to make a difference.
111
Given these realities of carceral culture in America, it is unsurprising
that the template of a call of ousting judges perceived as overly lenient from
the bench has seen reprise outside of California. USA Today, for example,
reported on a pair of recent criminal cases under the headline “why don’t
rapists go to prison?”
112
Explicitly invoking Turner, the article bemoaned a
presumed lack of justice that at first glance appeared outrageous, though on
closer inspection both sentences were the result of negotiated pleas—one in
which the victim passed on a deal that would have mandated prison time.
Despite this, the framing of the article makes clear that judges are the ones
responsible.
113
Unsurprisingly, an online petition to remove the New York
judge from the bench currently sits at more than 50,000 signatures.
114
What seems missing, however, is any serious reflection as to whether
such campaigns will have the intended impact with respect to sexual harms.
110
. 18 U.S.C. § 3553(a)(2)(A) (1987).
111
. RECALL JUDGE AARON PERSKY, https://recallaaronpersky.nationbuilder.com/
[https ://web.archive.org/web/20180816215442/https ://recallaaronpersky.nationbuilder.com/] (la st
visited Oct. 17, 2019).
112
. Alia E. Dastagir, A Bus Driver Rapes, a Man Keeps Girl Captive and Neither Are Going
to Prison, USA TODAY (May 6, 2019, 6:32 AM), https://www.usatoday.com/story/news/nation/
2019/05/03/bus-driver-shane-pinche-wont-go-prison-rape-hes-not-alone/3653181002/.
113
. Id.; see Casey Grove, In Alaska, Righteous RageOver Sexual Assault, NPR (Oct. 2, 2018,
2:31 PM), https://www.npr.org/2018/10/02/652825497/in-alaska-righteous-rage-over-sexual-
assault; see also Doug Clark, Viewpoint, Supremely Unfair Attack on Justice, CHARLOTTE
OBSERVER (Apr. 30, 2014), https://www.charlotteobserver.com/opinion/op-ed/article9117476.
html.
114
. Ewan Palmer, 50,000 Sign Petition Demanding Judge Who Spared Bus Driving Child
Rapist from Jail Be Removed from Bench, NEWSWEEK (May 1, 2019, 1:10 PM),
https://www.newsweek.com/petition-judge-james-mcclusky-shane-piche-rape-bus-driver-
1411261.
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20 SOUTHWESTERN LAW REVIEW [Vol. 49
At the start, perhaps one of the most well-replicated findings in
criminological research is that punishment’s severity tracks very little with
individual deterrence.
115
What matters far more than how severe a
consequence is, is how likely an individual is to experience it.
116
As observed
in Part I, that likelihood here is vanishingly small. Even if that likelihood
were boosted, the deterrent value of the criminal law remains questionable at
best.
117
Two centuries’ worth of data indicates that mandatory punishment
schemes, for example, have no deterrent impact, but carry with them
enormous social, fiscal, and human cost.
118
Ramping up on consequences in the wake of cases like Turner’s
119
also
can only ever be likely to impact those individuals who lack the money,
connections, resources, and power to avoid entering into the criminal legal
system in the first place. While criminal defendants like Turner make
tempting targets for punitive anger, scholars have consistently shown that
people who are poor, who are sexual minorities, people of color, or other
marginalized groups will be the most impacted.
120
Not only are populations of color most likely to be those populations
which are most severely impacted by these criminal legal policies, they are
also those populations of victim-survivors and others whom the law is
intended to benefit that are most likely to be ignored, discarded, or criminally
charged themselves.
121
Mandatory punishment schemes also wind up having the perverse
impact of reducing accountability and transparency—which often is
exceedingly important for people who have experienced sexual harm—by
incentivizing defendants to enter pleas to offenses that they did not commit
in order to avoid certain mandatory punishment schemes (such as
imprisonment or sex offense registration).
Raising the punitive stakes also has other perverse consequences for
communities and for those embroiled in the criminal legal system. To the
extent that what victim-survivors truly seek is someone to be accountable and
115
. Five Things About Deterrence, NATL INST. OF JUST. (June 5, 2016) https://nij.ojp.gov/
topics/articles/five-things-about-deterrence.
116
. Id.
117
. LEIGH GOODMARK, DECRIMINALIZING DOMESTIC VIOLENCE 25 (2018).
118
. Michael Tonry, The Mostly Unintended Effects of Mandatory Penalties: Two Centuries of
Consistent Findings, 38 CRIME AND JUST. 65, 67 (2009).
119
. BERRY, supra note 46, at 1-2.
120
. See GOODMARK, supra note 117, at 25; see also Levin, supra note 47, at 502.
121
. See Aya Gruber, Rape, Feminism, and the War on Crime, 84 WASH. L. REV. 581, 587
(2009) (tracing the historical development and use of rape law, providing white men with a virtual
license to rape.); see also supra note 15 and accompanying text.
Electronic copy available at: https://ssrn.com/abstract=3427857
2019] THE AGONY & THE ECSTASY OF #METOO 21
take responsibility for the harms they have experienced,
122
increasing the
costs ever-higher for people who have committed those harms dramatically
disincentivizes people from taking those steps at all, or by way of plea
agreement to an offense that did not actually occur.
It is also worth observing that expressions of remorse, like those
expressed by Turner in the probation report,
123
might be perhaps viewed
skeptically in light of the fact that he proceeded to trial and subsequently
sought appellate review.
124
In Turner’s example, is difficult, if not
impossible, for anyone other than Turner to know what he genuinely feels.
Assuming he does feel remorse, it is possible that this apparent contradiction
of terms is something of an artifact of the context in which he is supposed to
express that remorse.
Stated differently, if the only thing that awaits someone who has caused
harm is decades in a cage plus a lifetime of civil death, then the only real
incentive that they have would seem to be to fight tooth and nail to avoid
those consequences, even if they are remorseful. While such a choice might
be understandable, the natural outcome would seem to result in a system that
victim-survivors often report as more traumatic than the offense that they
seek to have adjudicated.
125
Arguably, this deters reporting as well, if the only
option for victim-survivors is a process that will only damage them further
without any guarantee that they will “win.”
126
More broadly, casting the problem of sexual violence in terms of a fight
over “not-enough-years”
127
or “too-many-rights”
128
or containing would-be
122
. See SERED, supra note 20, at 23; MILLER, supra note 79, at 91 (I wanted accountabilit y
and punishment, but I also hoped he was getting better. I didnt fight to end him, I fought to convert
him to my side. I wanted him to understand, to acknowledge the harm his actions had caused and
reform himself.).
123
. Probation Re port, supra note 90.
124
. [Turners appellate counsel] announced hed already prepared the Notice of Appeal, [and]
asked where he could file it. Brock may have been genuinely remorseful, but he had hired an even
higher-powered attorney to repaint me as a liar, drunk, willing. MILLER, supra note 79, at 237.
125
. Miller reflected,
When you sa y go to the police what do you envision? I was grateful for my team. But the
police will move on to other cases while the victim is left in the agonizing, p rotracted judicial
process, where she will be made to question, and then forget, who she is. You were just
physically attacked? Heres some information on how you can enter a multiyear process of
verbal abuse. Often it seems easier to suffer rape alone, than face the dismembering that comes
with seeking support.
Id. at 287.
126
. And winning in this context is often of dubious value.
127
. Such as the conflagration that erupted over Brock Turner.
128
. The campaign for Marsys Law––an ostensible victims rights political organization, has
asked on its website whether it is fair that criminal defendants have more rights than victims, for
example. For more information, see About Marsys Law, MARSYS LAW,
https://www.marsyslaw.us/about_marsys_law (last visited, Oct. 26, 2019).
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22 SOUTHWESTERN LAW REVIEW [Vol. 49
incorrigible criminals
129
puts all of our attention and focus “downstream,”
which has a limited reach, questionable efficacy (and obfuscates more
important upstream failures with respect to police gatekeeping, and systems
of money and power that perpetuate sexual violence), but also triggers
pushback from civil rights organizations, resulting in protracted culture wars.
The upshot of all of this is that arguably sexual harms become
perpetuated in our society, even by way of ostensibly good-faith attempts to
address it. As noted previously, scholarship exists as to how our framing of
sexual violence in terms of predators, strangers, and monsters serves to
bolster and prop up the occurrence of sexual violence in society.
130
To the
extent we render the identity and existence of the Brock Turners of the world
as “rapists” and “monsters” and “predators,” we elide over the realities of
sexual harms by “paint[ing] a picture of a criminal that look[s] nothing like
the average college date rapist.”
131
This mis-framing works hand-in-hand to submerge the bulk of sexual
harms in our society. As the severity of our punishments increase, then, and
to the extent that survivors also care (sometimes by way of necessity)
132
about
the welfare of the person who harmed them, there are reasons to believe
increasing our penal harshness might inhibit the willingness of people to
report into that system. For example, data indicates that over the last several
years, while reporting of stranger sex offenses has stayed constant, reporting
for those offenses where the perpetrator was known to the survivor have
declined significantly.
133
Enhanced punitivity, even (and perhaps especially) in high-profile cases,
also facilitates ignoring larger structural incentives, which facilitate sexual
violence:
A long custodial sentence, like the one handed down to [Larry] Nassar,
contributes to the misguided idea that sexual harm is the result of one ‘sick’
individual, removed and isolated from the very culture that allows these
kinds of interpersonal harms to happen, unabated, even in the face of
accusations and rumours of misconduct.
134
129
. For further discussion of sex offense registries, see supra notes 12-14 and accompanying
text.
130
. See ERIC S. JANUS, FAILURE TO PROTECT: AMERICAS SEXUAL PREDATO R LAWS AND
THE RISE OF THE PREVENTIVE STATE 113-16 (2006); see also Corrigan, supra note 72, at 303.
131
. Gruber, supra note 121, at 641.
132
. Much sexual violence is intrafamilial. Oftentimes those who are harmed also depend on
the person who is harming them for financial security or housing.
133
. See RACHEL E. MORGAN & GRACE KENA, BUREAU OF JUSTICE STATISTICS, CRIMINAL
VICTIMATION, 2016: REVISED, at 7 tbl.4 (2018), https://www.bjs.gov/content/pub/pdf/cv16re.pdf.
134
. Adina Ilea, What About the Sex Offenders? Addressing Harm from an Abolitionist
Perspective, 26 CRITICAL CRIM INOLOGY 357, 360 (2018).
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2019] THE AGONY & THE ECSTASY OF #METOO 23
There are also broader philosophical concerns to be grappled with
respect to this punitive turn. In 2009, Anya Gruber remarked that,
The historical moment in which American feminist reformers find
themselves is one where criminal law and incarceration has for three
decades been the most acceptable form of government action. This
philosophy has devastating effects on the most subordinated segments of
society. The feminist movement’s continued calls for more and harsher
punishment of gendered crimes in this era of vengeance and victims’ rights
makes it complicit in a neoliberal system that undermines women’s equality
and economic health and retards equality generally. As a result, it seems
that ‘feminist ideas and credibility are being appropriated to strengthen an
apparatus that . . . should be dismantled.’
135
Stated differently, arguably, the punitive turn to address sexual violence
is something of a wolf-in-sheep’s-clothing: that ideas that are anathema to
ideas central to feminist liberation are being dragooned into service
ostensibly in support of those goals.
For instance, to punish sexual violence, we send people to places that
are awash in sexual violence—thus perhaps signaling it is not so much sexual
violence that we find detestable, just against whom and under what
conditions it is deployed.
136
IV. THE ECSTASY
Nobody wins. We have all been devastated, we have all been trying to find
some meaning in all of this suffering.
137
Miller’s statement above reflects an experience with a criminal legal
process that depends on everyone being made to suffer in equal measure (as
opposed to helping everyone to heal in equal measure). In other words, it is
a system that rarely produces “good” outcomes for anyone involved when
allegations of sexual harms are considered. Miller is hardly alone in that
estimation; as in one conversation with a former rape crisis legal advocate
with years of experience, it was revealed that out of her many clients, not one
claimed that they felt it was worth it on balance.
138
135
. Gruber, supra note 121, at 625-26; see also ANGELA DAVIS, ARE PRISON S OBSOLETE? 49
(Greg Ruggiero ed., 2003).
136
. See Jessi Lee Jackson, Sexual Necropolitics and Prison Rape Elimination, 39 SIGNS: J. OF
WOMEN IN CULTURE AND SOCY 197, 210 (2013).
137
. Baker, supra note 94 (referring to statement of Chanel Miller.).
138
. For a fuller discussion of the ways in which the carceral system fails survivors, see Stefanie
Mundhenk Harrelson, I Was Sexually Assaulted. And I Believe Incarcerating Rapists Doesnt Help
Victims Like Me., THE APPEAL (July 18, 2019), https://theappeal.org/i-was-sexually-assaulted-and-
i-believe-incarcerating-rapists-doesnt-help-victims-like-me/.
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24 SOUTHWESTERN LAW REVIEW [Vol. 49
As described above, there are compelling reasons to believe that reliance
on the criminal law for ending gendered violence is something of a false
hope:
There is another, more progressive, feminist agency argument that criticizes
reforms that install the criminal law as “a coercive entity” in women’s lives.
Like the conservative agency argument, it criticizes discourse that
characterizes female rape victims, not simply as individuals to whom
something bad has happened, but as perpetually “ruined” women who must
forever bear witness to their victimhood.
139
Reliance on the criminal law, as critics point out, means that women’s
general self-perception as constant potential victims of rape effectively limits
the range of their autonomous actions:
A socially constructed but deeply internalized fear of sexual crime
victimhood has served to constrain women’s movement through the world–
–what we do, what we say, where we go, how we live––arguably to the
benefit of men’s interests. This is what some scholars term the
“disciplinary” function of male abuse of women.
140
In other words, a carceral approach is one which arguably perpetuates
and shores up oppression more broadly.
141
While this isn’t to say that the criminal legal system has no role, arguably
the legal procedures that we have erected and the allocation of our resources
and attention creates a system that is ultimately one that perpetuates injustice
and suffering on all sides, in the name of ameliorating it. Assuming that our
goals are to reduce harm and hold people accountable for that harm, might
there be better approaches?
There is a better path. The basic idea is this: ours is a system badly
out of balance—all of our focus, solutions, ideas, public safety resources, and
discourse is focused almost entirely on the “downstream”––that is, sentence
length, constitutional rights, and registries. If we shifted our focus
“upstream,” had more of a focus on accountability and less on punishment,
and also adopted evidence-based public health models of sexual violence, it
would be, for all parties involved, a better and more humane use of our
resources than our current approach.
139
. Gruber, supra note 121, at 609.
140
. Id. at 609.
141
. As some scholars have recognized:
[T]he move by feminist activists and scholars to embrace harsh punitive responses to gender
violence has exacerbated troubling distributional inequities. Rather than empowering women
victimized by gendered subordination, many of these policies (mandatory no-drop policies,
preferences for pretrial detention, etc.) have empowered prosecutors and further contributed to
the hyper-policing and hyper-incarceration of poor people of color and defendants from
marginalized communities.
Levin, supra note 47, at 531.
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2019] THE AGONY & THE ECSTASY OF #METOO 25
As observed in the introduction, there are separate crises that reinforce
one another: a flood of punishment in a desert that needs accountability.
Punishment eats resources that might be better able to address the crisis it is
deployed for in other ways, for example, by boosting the likelihood of
accountability, or preventing harm in the first place.
A posture that de-prioritizes severe punishments also incentivizes people
who have caused harm to take responsibility for that harm and participate in
the healing process of the victim-survivor. As it stands, because the stakes
and the stigma are so outsized, the only real incentive is to vigorously fight,
thus also contributing to additional trauma that victim-survivors experience
in the criminal legal system.
For example, sex offense registries occupy an increasingly large
economic footprint and consume an enormous amount of public safety
resources despite not enhancing community safety.
142
If these were
abolished or curtailed in some significant way, then the resources that go into
ensuring their operation, officer time spent investigating compliance, and
judicial resources spent prosecuting failure to comply violations could be
allocated elsewhere. As the Association for the Treatment of Sexual Abusers
observed: “Victim advocate organizations have questioned the large
expenditure of funds on sex offender management tools that may not really
protect communities, while resources and services for victims are being
cut.”
143
In addition to services for victim-survivors, as observed in Part I, there
are myriad structural reasons why the likelihood of accountability is
exceedingly small to begin with, however, resources and attention can at least
begin to correct this. Sex crimes units can be properly staffed and trained,
and incentives that police departments have to misrepresent rape statistics
can end.
There are also evidence-based public health models of sexual violence
that, when effectively deployed, significantly reduce the rates of rape to begin
with. In short, good social policy is the best crime policy. Even on the re-
entry side, with individuals who truly are high needs, there are effective
evidence-based models of re-entry that do not rely on the punitive and
shaming models adopted by public conviction registries.
144
142
. See SARAH NAPIER ET AL., AUSTRALIAN INSTITUTE OF CRIMINOLOGY, WHAT IMPACT DO
PUBLIC SEX OFFENDER REGISTRIES HAVE ON COMMUNITY SAFETY? 4, 6 (2018), https://aic.gov.
au/publications/tandi/tandi550 (download PDF).
143
. JOAN TABACHNICK & ALISA KLEIN, ASSN FO R THE TREATMENT of SEXUAL ABUSE RS,
A REASONED APPROACH: RESHAPING SEX OFFENDER POLICY TO PREVENT CHILD SEXUAL ABUSE
9 (2011), http://www.atsa.com/pdfs/ppReasonedApproach.pdf.
144
. See Article 8, CRIMINOL OGICAL HIGHLIGHTS, Mar. 2019, at 11, https://criminology.
utoronto.ca/wp-content/uploads/2019/08/CrimHighlightsV17N6.pdf.
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26 SOUTHWESTERN LAW REVIEW [Vol. 49
Most importantly, our current approach is mostly indifferent to the needs
of victim-survivors.
145
Restorative justice models, which have gained
popularity with violence writ large,
146
are also operative within the context
of sexual violence.
147
Organizations such as generationFive use a
transformative justice approach to tackle the problem of child abuse, all of
which focus on and center around the needs of the person who was harmed
to ensure their safety within the context of a process that does not rely on
carceral politics.
148
In the context of violence, survivors report satisfaction
with these models that far exceed traditional adversarial legal proceedings.
149
CONCLUSION: A TALE OF TWO ME TOOS
Every society, like every person, has its monsters in the closet, the
nightmares it has trouble not thinking about, and those fears teach us
something about the culture.
150
Twelve years after launching Me Too, in December of 2018, Tarana
Burke took to the TEDWomen 2018 stage in Palm Springs, California to
remark on her journey.
151
She observed that even as “survivors of sexual
violence are all at once being heard, and then vilified,” that the movement
that she started is being talked about and cloaked in the language of
vengeance, when it was “started to support all survivors of sexual
violence.”
152
In other words, at times, she found “the Me Too movement that
[she hears] some people talk about is unrecognizable” to her.
153
The fact of Burke’s activism lays plain an undeniable fact about our
culture: our culture is one that is awash in sexual harms, particularly for
women and girls. Our institutions routinely fail to meaningfully address
these harms (particularly when those who are harmed come from
communities that are traditionally treated as hostile by police), and arguably
perpetuate them in a variety of ways. On the comparatively rare occasions
145
. See Harrelson, supra note 138.
146
. See SERED, supra note 20, at 43.
147
. Alissa R. Ackerman, The Importance of Connection, YOUTUBE: TEDxCSULB (Jan. 23,
2019), https://www.youtube.com/watch?v=DTfBVR1eLFo.
148
. GENERATIONFIVE, CHILD SEX ABUSE: A TRANSFORMATIVE JUSTICE HANDBOOK, at 37-
38 (2017), http://www.generationfive.org/wp-content/uploads/2018/08/g5-Transformative-Justice-
Handbook.pdf.
149
. See Michelle Alexander, Opinion, Reckoning with Violence, N.Y. TIMES, Mar. 3, 2019, at
A21.
150
. Kleinfeld, supra note 41, at 997.
151
. Tarana Burke, Me Too Is a Movement, Not a Moment, TED (Nov. 2018), https://www.
ted.com/talks/tarana_burke_me_too_is_a_movement_not_a_moment?language=en.
152
. Id.
153
. Id.
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2019] THE AGONY & THE ECSTASY OF #METOO 27
when people are held accountable, we tend to compensate for our broader
failures by rendering them immutable monsters and treating them as such.
They become far removed from our communities, our friends, our families,
or indeed ourselves. While most would perhaps be fine with this arrangement
if it made us safer, there are compelling reasons to believe that our framing
and approach perpetuates sexual violence in society—to say nothing of the
human, constitutional, and fiscal costs.
People v. Turner, and its explosive aftermath revealed much about our
culture: both the undeniable pain of so many women and men who had
experienced sexual harm, but also our favored response. The undeniably
atrocious reality of Turner’s actions notwithstanding, against this backdrop a
largely fictitious narrative took root, which ultimately resulted in Aaron
Persky’s recall from the bench—though the full impact of the recall remains
to be seen as it continues to reverberate throughout our culture, media, and
courts.
Approaches that rely on carceral politics are deaf to the needs of victim-
survivors, especially when those needs diverge from maximizing state
power. Curiously, in our criminal legal system, the two individuals who
should matter the most to the entire process—the person who caused harm,
and the person who was harmed––seem to function as props necessary for a
machine to operate, which in turn “focuses nearly exclusively on punishing
criminals and virtually ignores forgiveness, victim healing, elimination of
socio-economic predicates of crime, and victim social services.”
154
We exist in a time when increasingly broad segments of our society are
willing to reconsider the wisdom of putting people into cages,
155
though this
enthusiasm dims significantly when we consider people convicted of violent
or sexual offenses. While the language of cages and years has been our
traditional one, there are reasons to believe that reliance on carceral politics
will do little to address violence, sexual or otherwise, in our society.
156
Many saw the Persky recall as vindication for #MeToo. Populist anger
makes for easy translation to legislative proposals ramping up on
punishments for the moral monsters of the era, though with questionable
efficacy, and obvious costs. While early rape law reform sought to
destigmatize rape offenses, the current trend appears to be the opposite: to
make it as stigmatizing as possible, in an ostensibly good-faith bid to take the
problem seriously and lend support to victim-survivors. Arguably, this
stigmatization is another patriarchal trope that ultimately serves no one.
154
. Gruber, supra note 121, at 615.
155
. See Rachel Kushner, Is Prison Necessary? Ruth Wilson Gilmore Might Change Your Mind,
N.Y. TIMES MAG., April 21, 2019, at 37.
156
. See Gruber, su pra note 121, at 615-16.
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28 SOUTHWESTERN LAW REVIEW [Vol. 49
Perhaps the most that is known about the epilogue of any of the people
who were involved in the recall effort is Chanel Miller, who as noted above,
wrote a book about her experiences and gave numerous media interviews.
157
Aaron Persky was recently fired from his job as a high school tennis coach
one day after he was hired, after it became known that he was the judge in
People v. Turner.
158
Turner, now twenty-four, is listed as a “level III” sex
offender in Ohio, and is reported that he is working at a factory and living
with his parents.
159
While many internet commentators sought to ensure that
he would “become known as the Stanford rapist,” it would appear that they
have succeeded. The site behind the Kappa Alpha fraternity house where
Turner attacked Miller has since been turned into a memorial, proposed by
Professor Dauber,
160
though efforts to inscribe the memorial with portions of
Miller’s statement were resisted by Stanford, who only recently
acquiesced.
161
Our language for victim-survivors and predators freezes the
humanity of both Miller and Turner in place, locating both of them in a
moment in time: to wit, a college party in Santa Clara County in the early
morning hours of January 18, 2015.
162
If we care about preventing harm, then it seems plain that there are better
approaches to that end than the systems that we have in place. Throughout
this paper, I have mentioned the assumption that all of this––our laws and
our policies––is intended to create public safety. Considering the reality of
the laws, policies, and resources that we have deployed to achieve this goal,
this is arguably a big assumption to make. Police as hostile gatekeepers
depress reporting (and sometimes result in women being criminally charged
for reporting their own rapes). Sex registries make re-offense more likely.
Lengthy prison terms, despite satisfying our carceral urges, are actually
criminogenic.
Perhaps there are other, less conscious motivations at work. Punishment,
in a way, provides for a fractured society to achieve solidarity––a “hostile
157
. MILLER, supra note 79.
158
. Sarah Moon & Amanda Watts, The Judge Who Was Recalled After the Brock Turner Case
Is Fired from His New Job as a High School Tennis Coach, CNN (Sept. 12, 2019, 9:44
AM),_https://www.cnn.com/2019/09/12/us/brock-turner-case-judge-fired-coaching-
job/index.html.
159
. Alyssa Choiniere, Brock Turner Now: Where Is Turner in 2019?, HEAVY (Sept. 23, 2019,
3:47 PM), https://heavy.com/news/2019/09/brock-turner-now-2019-update/.
160
. See Courtney Vinopal, Stanford Transformed the Brock Turner Assault Site into a
Powerful Reminder for Students, BUSTLE (Nov. 7, 2017), https://www.bustle.com/p/stanford-
transformed-the-brock-turner-assault-site-into-a-powerful-reminder-for-students-3237966.
161
. Kris Reyes, Stanford Approves Chanel Miller Plaque Following Years of Protests, ABC7
NEWS (Nov. 13, 2019, 9:14 AM), https://abc7news.com/society/stanford-approves-chanel-miller-
plaque-following-years-of-protests/5693816/.
162
. Felony Complaint, supra note 82, at 4.
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2019] THE AGONY & THE ECSTASY OF #METOO 29
solidarity.”
163
The more we punish for this purpose, then, the more it
becomes necessary to achieve the same results.
164
Like a drug, we become
addicted to punishment. Stated differently, perhaps we care less about
preventing harm than we say we do, because if we prevented harm, there
would be no one left to punish.
This piece ends with a question, as opposed to a proscription. A moment
of cultural and legal reckoning as to the reality of sexual and gendered harms
has brewed for generations, and now appears at hand. Alongside this
moment exists another; one that regards our massive penal infrastructure as
woefully inefficient at addressing, and thus changing, societal problems.
As we regard the crossroads before us, it remains to be seen, exactly,
down which road we will travel, taking our police, prisons, people they
house, and our pain with us. The outcome will depend largely on what we,
as a society and a culture, decide is important to us.
163
. Henrique Carvalho & Anastasia Chamberlen, Why Punishment Pleases: Punitive Feelings
in a World of Hostile Solidarity, 20 PUNISHMENT & SOCY 217, 222 (2017).
164
. Id.
Electronic copy available at: https://ssrn.com/abstract=3427857
ResearchGate has not been able to resolve any citations for this publication.
Article
Since its enactment in 2006, several researchers have explored whether the Sex Offender Registration and Notification Act (SORNA) classification system under the Adam Walsh Act improves outcomes such as increasing public safety and lowering recidivism of sexual offenders. This study adds to the growing body of literature by exploring how accurate this offense-based classification system is in terms of recidivism and if there is any racial bias in tier designation. Specifically, results from contingency analyses suggest that several sex offenders are overclassified, meaning that they were given a classification status that included more supervision and oversight although they did not commit another offense. Furthermore, African Americans were two-and-a-half times more likely to be overclassified than Caucasians which suggests racial bias may exist in this government-sponsored classification system. Implications for communities and the continued use of the SORNA are presented.
Article
This study of Megan's Law contrasts scholarly narratives that describe and analyze sexual predator laws with a case study of implementation in New Jersey. A critical feminist perspective shows that Megan's Law employs a radically underinclusive notion of sexual violence that conflicts sharply with feminist arguments about the cultural and institutional roots of sexual violence. The law excludes many of the most common offenders from reach of the law, thus deflecting attention away from assaults committed by family and friends in favor of reviving stereotypes about deviant strangers. The most significant effect of Megan's Law is not to expand the power of the punitive state but to advance a political and legal interpretation of rape that undermines the basis for and gains made by feminist rape law reforms of the 1970s.
Here's the Powerful Letter the Stanford Victim Read to Her Attacker
  • J M Katie
  • Baker
Katie J.M. Baker, Here's the Powerful Letter the Stanford Victim Read to Her Attacker, BUZZFEED NEWS (June 3, 2016, 4:17 PM), https://www.buzzfeednews.com/article/katiejmbaker/ heres-the-powerful-letter-the-stanford-victim-read-to-her-ra#.xf2YDd8Xv.
Santa Clara County Public Defender Explains What Judge Persky's Recall Means for His Clients, THE APPEAL
  • Paul Debenedetto
Paul DeBenedetto, Santa Clara County Public Defender Explains What Judge Persky's Recall Means for His Clients, THE APPEAL (June 11, 2018), https://theappeal.org/santa-clara-public -defender-persky-recall/.
DeBenedetto, supra note 100. 104. Press Release, Comm'n on Judicial Performance, supra note 99. 105. Vitiello, supra note 83
  • Elena Kadvany
Elena Kadvany, Law Professors Voice Opposition to Persky Recall, PALO ALTO ONLINE (Aug. 21, 2017, 8:26 AM), https://www.paloaltoonline.com/news/2017/08/18/law-professors-voice -opposition-to-persky-recall. 103. DeBenedetto, supra note 100. 104. Press Release, Comm'n on Judicial Performance, supra note 99. 105. Vitiello, supra note 83, at 632. 106. See supra note 8. 107. See supra note 10.
Id.; see Casey Grove
  • Alia E Dastagir
Alia E. Dastagir, A Bus Driver Rapes, a Man Keeps Girl Captive and Neither Are Going to Prison, USA TODAY (May 6, 2019, 6:32 AM), https://www.usatoday.com/story/news/nation/ 2019/05/03/bus-driver-shane-pinche-wont-go-prison-rape-hes-not-alone/3653181002/. 113. Id.; see Casey Grove, In Alaska, 'Righteous Rage' Over Sexual Assault, NPR (Oct. 2, 2018, 2:31 PM), https://www.npr.org/2018/10/02/652825497/in-alaska-righteous-rage-over-sexualassault; see also Doug Clark, Viewpoint, Supremely Unfair Attack on Justice, CHARLOTTE OBSERVER (Apr. 30, 2014), https://www.charlotteobserver.com/opinion/op-ed/article9117476. html.
000 Sign Petition Demanding Judge Who Spared Bus Driving Child Rapist from Jail Be Removed from Bench
  • Ewan Palmer
Ewan Palmer, 50,000 Sign Petition Demanding Judge Who Spared Bus Driving Child Rapist from Jail Be Removed from Bench, NEWSWEEK (May 1, 2019, 1:10 PM), https://www.newsweek.com/petition-judge-james-mcclusky-shane-piche-rape-bus-driver-1411261.
  • Sarah See
  • A L Napier Et
  • Australian
  • Of Criminology
See SARAH NAPIER ET AL., AUSTRALIAN INSTITUTE OF CRIMINOLOGY, WHAT IMPACT DO PUBLIC SEX OFFENDER REGISTRIES HAVE ON COMMUNITY SAFETY? 4, 6 (2018), https://aic.gov. au/publications/tandi/tandi550 (download PDF).
  • Alexander See Michelle
See Michelle Alexander, Opinion, Reckoning with Violence, N.Y. TIMES, Mar. 3, 2019, at A21. 150. Kleinfeld, supra note 41, at 997.
Me Too Is a Movement, Not a Moment, TED
  • Tarana Burke
Tarana Burke, Me Too Is a Movement, Not a Moment, TED (Nov. 2018), https://www. ted.com/talks/tarana_burke_me_too_is_a_movement_not_a_moment?language=en. 152. Id. 153. Id. SOUTHWESTERN LAW REVIEW [Vol. 49