People seem to think we can fix rape culture and sexual assault by putting rapists in prison for a long time. Take for example the response to the Brock Turner case: people yelling for him to be imprisoned for way longer, people outraged at his early release, a mobilization to recall the judge who sentenced him to six months, as well as the passage of a mandatory minimum sentence law for specific types of sexual assault by the California legislature.
This reaction is understandable; people aren’t wrong for wanting rapists to go to prison — we’ve been given no avenue other than incarceration as a suggestion for how we might resolve the harm done to individuals and to communities through sexual assault and rape. But, to me, there seems to be something faulty with this line of thinking, which assumes we can fix something as dehumanizing, violating and oppressive as sexual assault with something as dehumanizing, violating and oppressive as prison.
If Brock Turner, or anyone for that matter, rapes someone again, which likely will be the case given the rate of serial rapists — though that study has generated a fair amount of controversy — it won’t be because we didn’t lock him up for long enough. It’ll be because of his unaddressed sexism, sexual entitlement and toxic masculinity (among other problematic behavioral traits); it’ll be because he was never truly rehabilitated; and it’ll be because, I think, the structure of our criminal justice system is incompatible with achieving real justice for sexual assault victims and survivors.
In order to prevent rape, you need to know why it happens, and it doesn’t happen because we’re not sending people to prison for 14 years. It happens because our society is full of patriarchy and sexism and problematic power relationships. The prison environment reinforces and amplifies harmful power dynamics that feminists and anti-rape advocates are trying to eradicate. Prison is not the place to rehabilitate rapists because it replicates the dynamics, hierarchies and aggressive hyper-masculine culture that are all at least partially responsible for the normalization, acceptance and proliferation of sexual assault.
In addition to the issue of using an oppressive environment to correct an oppressive behavior, our justice system also seems to be ill set up to prosecute sexual assault cases, and ultimately incapable of really achieving justice for survivors and victims of sexual assault. Often, the reason people report their assaults is because they want their assailants to take responsibility for the harm they inflicted. In other words — and this is very basic — many survivors and victims want their rapists to acknowledge and recognize the pain they inflicted: They want an apology. Take the viral victim impact statement from the Brock Turner case, where she writes, “I also told the probation officer that what I truly wanted was for Brock to get it, to understand and admit to his wrongdoing.”
Our system is not set up for this. It actively disincentives any admission of responsibility, what it calls being "guilty," through its threat of severe punishment, i.e. prison. People charged with felonies are understandably afraid to admit guilt because that likely would mean going to prison. Because our system is punitive instead of restorative, it incentivizes selfishness and self-preservation over compassion, dialogue and true resolution.
Also, the established way guilt is decided in the courts is through the jurors. Socially, we’re to understand jurors as people who provide outside, objective evaluations of the evidence in order to arrive at a fair assessment of the defendant’s guilt or innocence. But it’s mostly impossible for jurors to do this because 1) there’s hardly ever any concrete evidence for jurors to review in rape cases and 2) jurors exist in the same world we do, and by that I mean jurors are ensconced in all the same rape-culture bullshit the rest of us are and are thus likely to be swayed by sexist tropes and victim-blaming myths in the deliberation process.
What ought to be the guiding principle of handling sexual assault and rape cases is that a person — the survivor/victim — feels like they were violated and so they were. We must accept this truth and create alternative models of restorative justice to rectify this harm. This means the creation of survivor/victim-centered spaces for resolving rape and sexual assault, spaces that are radically divergent from the current ones we have, whether that be the college sexual-assault panel or the official court room trial. In these spaces the question isn’t if this person was violated, but rather accepting that this person was violated and that we as a community need to do something about it with the survivor/victim as the leader of the process.
This might seem really outrageous and unachievable, but we already do accept and practice this principle in other aspects of our lives. There’s an episode of Louie that talks about it: Louie tells his friend, Lenny, that he hurt him when he hit him. Lenny says he didn’t hurt him, and then Louie says “I’m telling you that it hurt, and you don’t get to deny that. When a person tells you that you hurt them, you don’t get to decide that you didn’t.”
In this process of resolving sexual assault and rape, neither the perpetrator, nor anyone else, gets to decide against or argue about the survivor/victim’s account of the assault. They don’t get to decide that they didn’t assault them. The perpetrator’s opinion and anyone else’s opinion of the perpetrator's guilt/innocence is irrelevant. The only account of what happened that can hold any weight is that of the person who was assaulted.
Collectively, we’re responsible for cultivating an environment where the survivor/victim is able to heal, where the perpetrator recognizes what harm they caused and is required and desires to do something to resolve the harm. This represents a major and necessary departure from our established principles of justice by removing the threat of severe punishment (i.e. prison). We deter the rampant selfishness and self-preservation that exists in our current justice system through this paradigm shift — by moving toward a model that prioritizes honesty, healing, compassion and humane reparations.
Clarissa Donnelly-DeRoven can be reached at email@example.com.
Clarification: This article has been updated to better reflect the controversy around a study on the rate of serial rapists.