M. BUNA: You reject the idea of “injustice to some as justice to others” and make a case against outsourcing vengeance to the state while recognizing “crime” as a fickle and malleable political term. Why is it vital to use “harm” instead of “crime,” especially when addressing issues of accountability? How can we use restorative and transformative processes without erasing the complicated realities of people making choices in their interpersonal relationships?
ERICA R. MEINERS: The deliberate use of “harm” instead of “crime” is just one move toward being more specific and useful. It’s not the full answer, of course, but the criminal legal system makes available language like victim, offender (violent and nonviolent), crime, sex offender — and these are more than simply words. They are weighted, never neutral, and frame acts and consequences. These criminal legal terms don’t help us understand a thicket of important questions: What happened? What histories/genealogies led to a particular act? What relationships are at stake? And, most importantly, how can we collectively work to respond to the situation — hold the person/s who have done harm accountable, and also work to meet the needs of the person who has been harmed? How do we ensure this harm doesn’t happen again? The language that transformative justice and community accountability movements center makes things more complicated because relationships between people, and the harm they may cause, are complicated. Getting away from the criminal legal system and its obfuscating language is a move in the direction of working to build stronger and safer communities.
With the current push to craft new legal norms that police sexual encounters, and to add new forms of conduct (dating deception, revenge porn, stealthing) to the list of criminalized sexual behaviors, how do we determine who “qualifies” for the sex offender label in the first place?
JUDITH LEVINE: “Sex offender” is a capacious category, encompassing anyone from a flasher to a consensual teen lover to a rapist wielding a lethal weapon. It’s not just vague; it’s dehumanizing: it uses a criminal conviction as an identity. The definitions of “sex crimes” change with history and politics, and that’s happening now. #MeToo exposed the myriad ways that men (it’s mostly men) can be sexually nasty and violent toward (mostly) women. Along with debates about how to address sexual assault on campus, #MeToo widened the conversation about what to call different acts and what constitutes an “offense.” Where does misunderstanding turn to misconduct and where does misconduct cross the line to violence? Should we always #BelieveWomen or assume innocence until proof of guilt — or should we look for other, more nuanced descriptions of harm? And then what?
The “carceral” (law and order) feminist approach is twofold: raise the legal standard for non-consent from “no means no” (stop when the other person indicates she’s not into it) to “yes means yes” (don’t start until a partner gives “enthusiastic consent”), which will lead to criminalizing a growing list of aggressive sex-related acts. But labeling more people as “sex offenders” — or worse, “predators” — will not help harm-doers understand the consequences of their actions or yield real accountability. We need to challenge a masculinist “might makes right” culture, not ask the state to punish more people.
The Sex Offender Registration Act wields the fantasy of the innocent child (almost always white, heteronormative, and asexual) in need of protection to enforce the registrant’s social death. By contrast, nonwhite bodies are seen as in need of correction, not protection — children/teens of color are more likely to get listed as “juvenile sex offenders” and “youth with sexual behavior problems.” How are categories of guilt and innocence ultimately used against the most vulnerable already deemed not worthy of protection?
MEINERS: In this political moment — again — a young black man, Ahmaud Arbery, who was jogging in a white neighborhood, was viewed as suspicious, guilty, thus justifying lethal white “self-defense.” Nonwhite youths are “aged up” by white adults and not seen as innocent: a 10-year-old black girl is viewed by a white adult as a culpable 15-year-old. Organizations like Survived and Punished and Love and Protect support and fight alongside the many women — particularly low-income, transgender, and/or nonwhite — who are criminalized, never given the benefit of any innocence, and automatically assumed to be the perpetrator when they attempt to defend themselves against interpersonal or state violence. Queer folks, people who are HIV positive, and sex workers are always marked as predatory, particularly sexually. These examples — and too many more — remind us that guilt and innocence, far from being static and neutral, are malleable and weaponized against many people. Our criminal legal system requires that we invest in these terms — guilt and innocence — as if this social landscape doesn’t exist.
When it comes to people with sex-related convictions, repaying one’s debt to society takes the form of a period of civil commitment while being referred to as “patients.” What interests are invested in the medicalization of sexual violence, sometimes also disguised as a “multidisciplinary collaboration” between healers and jailers?
LEVINE: Actually, civil commitment is not repaying one’s debt to society. The indefinite detention of a “sex offender” in a locked psychiatric facility happens after he completes a prison sentence — putatively to prevent him from committing another offense. Civil commitment is the most extreme facet of the sex offender regime, which also includes long sentences, registration, and the restrictions that go along with them. But the whole regime is based on the same disproven idea — that people who commit sex-related offenses suffer from a unique and incurable psychological illness. The medicalization and criminalization of sexual deviance goes back centuries. As recently as the 1960s, homosexuals were subjected to cruel “cures” and incarceration. The diagnosis that allows a state to civilly commit someone was invented in 1990: a “sexually violent predator” is defined as someone with a “mental abnormality” that predisposes him to sexual violence. But if this patient is incurable by definition, they are never well enough to be released, and most never are. Condemned by the American Psychiatric Association as the misuse of psychiatry for punitive purposes, civil commitment is preventive detention.
The section of your book called “Fractured Resistance” draws attention to several reformist and radical alternatives to the prison-industrial complex, as it’s manifested in the legal regime of sex offenses, showing their common points and contradictions. Can you say a bit about these alternatives, including the (un)likely alliances that might allow for the building of futures based on intersectional solidarity?
LEVINE: The landscape of movements addressing sexual violence and/or fighting for the rights of people accused and convicted of sex-related offenses is complex. Some feminists want to lock up more rapists while others would abolish prisons and address violence with non-criminal, restorative practices. There are wives and mothers working on behalf of men on the registry who are wary of all feminists; there are straight and queer men challenging ideologies of masculinity; there are antiracist prison abolitionists — and more. Sometimes they’re in conflict — for instance, when the coalition to restore voting rights to Floridians with felonies excluded “sex offenders” in order to get more support. Sometimes there are unexpected alliances, as when street-based sex workers, almost all low-income women and transwomen of color, joined with middle-class gay men to defeat a New Orleans ordinance to make “crimes against nature” — i.e., sodomy — in public places an offense requiring registration as a sex offender. A Harlem group organizing for nonviolent communities works with parishioners and clergy to confront sexual abuse within church congregations while helping to sustain survivor-supportive faith communities. Most recently, during the COVID-19 pandemic, those demanding the release of folks from prisons and jails to protect their health and lives have joined registered citizens in calling for suspensions of in-person registration and housing and internet restrictions, as well as release of the civilly committed.
You write: “The carceral state is the carceral state, whether surrounded by razor wire or covered in ivy.” The abolition movement seeks solutions for the interpersonal, social, economic, and political issues bound up in “sex offenses,” without defending prison on the one hand or merely advocating decarceration on the other. You advance abolition feminism as a way to rethink safety beyond prison and police, to confront sexual harm, and to end state violence. What does this political consciousness call for in terms of a paradigm shift away from current thoughts and practices?
MEINERS: “Paradigm” is the right word. This is long-haul collective work that we have to do every day. Abolition is about dismantling racist systems that don’t make us safer — public registries, policing, and prisons; but, just as centrally, abolition has always been the daily work to build, to experiment, to try to make our communities safer. Far from utopian, movements are doing this work right now, at the level of policy, and also at much more intimate registers — and everything in between. For example, I flag the many ongoing campaigns and organizations that seek to divest from policing, or to halt new jail constructions, and instead to demand these public resources go to free, affirming, and community-controlled health care. (Shout out to Dignity and Power Now, Critical Resistance, and so many other grassroots groups that defeated the proposed new 4,000-bed jail in Los Angeles!) Divesting from these carceral sites is crucial, and yet, also in this moment, many, many organizations are offering workshops, webinars, and more on how to address interpersonal harm in your relationships without calling the police. And none of this work will be effective without, concurrently, challenging the interlocking “-isms” — white supremacy, capitalism, heteropatriarchy, for example — that provide the oxygen for our punishing systems. While everything is urgent, because the state is killing people, we recognize that we cannot reduce this paradigm shift to a checklist. This is slow work, sometimes experimental, going on at multiple registers.
Going against a social order based on domination, employing transformative possibilities to eliminate the “cops in our heads and our hearts” (as Paula Rojas put it in her 2007 book, The Revolution Will Not Be Funded), and increasing the self-determination and autonomy of individuals and communities — all these important goals connect up to a major, overarching issue: the status of the state (carceral or not) as the ultimate power structure. Is working with the state and its formations an option for you or not?
LEVINE: I’ve struggled with this question as a restorative justice (RJ) volunteer at the community justice center in a small town in Vermont, where I live half-time. RJ in Vermont is part of the criminal legal system. I had to sign a contract as an “employee” of the Department of Corrections. The cases we get are referred by the local police, some of whom grew up in town; sometimes it feels as if an old high school grudge is being played out. Or we get kids who’ve been arrested for stupid pranks at school. Many of our folks face deep mental health challenges and almost all are poor or of color, in a town that’s almost 100 percent white. I feel we’re collaborating in the criminalization of misbehavior, turning a blind eye to possible police misconduct, and being used as a band-aid for huge injustices and inequalities. Still, the CJC helps people get jobs and services. Many of our cases are pre-charge, so if the person completes the process, there’s no indictment or criminal record. The alternative can be juvenile detention or jail. And of course, when it works, RJ helps harm-doers take accountability and harmed people to feel heard and involved; and it introduces another way of thinking about “crime.” I’ve lowered my expectations to keeping a few people out of prison while I continue to work for transformation and justice through writing and activism.
MEINERS: As I write with the current privilege of employment at a public university, I see my work — for now — as the both/and. Both working inside some of the worst institutions in the carceral state (including prisons), and actively supporting and funneling resources to movements, networks, and organizations that are trying to organize and build “outside” the carceral state. We can’t yet cede the terrain of these punitive public institutions — prisons, jails, schools — in part because so many of our people are contained within them and don’t have the luxury to leave! In the prison — with many to keep us in check and accountable — we try to be in it but not of it. All of this work is by necessity collective, and while community brings new opportunities for some joy and for the transformative possibilities of mutual aid, collectivity is essential to engender rigor in the negotiation of any tricky inside/outside work. Institutions are seductive and they co-opt and absorb all of our radical collective demands! While this is my pathway — partially shaped by where I am grounded now and the movements and communities I am accountable to — this is not a universal prescription. Right now, we need people working across all sites — insurgents and builders, transformative justice practitioners, and people who can siphon resources and free others!
M. Buna is a freelance writer.