Sexual violence is one of the biggest obstacles to advocacy in favor of prison abolition. Even for many people who support eliminating or radically shrinking the criminal legal system, sex crimes feel like an exception: What about rape? How do we protect victims and survivors of sexual assault? This set of serious concerns has often resulted in people supporting a strange mélange of policies that endorse less prison time for most crimes but harsher sentences, and expanded categories of harm, for sexual violence.
However, more police and prisons will only result in more sexual violence, not less. This is something I know personally from over a decade of having been a defender of indigent people accused of crimes. But a great deal of research also bears it out. Police officers around the country rape, sexually assault, and sexually harass people they are supposed to protect. The second-most-common complaint against police officers is sexual misconduct. Police officers who commit sexual assault target those whom they perceive to be vulnerable—anyone they think people won’t believe—including victims of intimate partner violence, young women and girls, women of color, and transgender people.
To give only one especially well-known example, Jannie Ligons, a Black grandmother from Oklahoma City, was assaulted in 2014 by Officer Daniel Holtzclaw during a traffic stop. Ligons was the first victim to come forward, causing Holtzclaw to be indicted. Her story empowered twelve other Black women who had been sexually assaulted by Holtzclaw to come forward. Notably, Ligons was the only victim of the thirteen without any prior criminal history. Had she not come forward, Holtzclaw would still be on the Oklahoma City police force sexually assaulting and traumatizing Black women.
Unfortunately, these stories are not uncommon. As a public defender, I represented several women and men who had been sexually assaulted or harassed by law enforcement, including police and prison guards. Some had reported the incidences and been ignored. Others never reported, fearing that they wouldn’t be believed—or, more importantly, fearing for their safety and the safety of their family if they should file a complaint.
The danger of rape while incarcerated is substantial, with thousands of incarcerated people reporting sexual abuse every year. Women are the fastest growing prison population. Between 1980 and 2021, the number of incarcerated women increased by more than 525 percent. Black women and girls are also incarcerated at higher rates than other groups. Most of these women have already experienced some type of sexual assault or physical trauma before their incarceration. Once incarcerated, they experience harassment and sexual violence at higher rates than incarcerated men and free women. Incarcerated women are thirty times more likely to be raped than free women. Transgender people are also routinely imprisoned in facilities that correspond to the sex assigned to them at birth, putting them at even greater risk of sexual violence.
In short, as we rely more on incarceration to administer justice and make communities safer—including from sexual violence—the result is that we put more people, particularly women and girls, in danger.
In the short film The Recall: Reframed, filmmaker Rebecca Richman Cohen explores the aftermath of one of the most notorious cases of sexual assault in recent memory. She asks viewers to reflect specifically on why there was the widespread perception at the time that the case had failed to deliver justice for the victim, despite a conviction. The film raises difficult questions, most particularly: Can we imagine a form of justice for victims of sexual violence that does not perpetuate the harms of mass incarceration?
The case the film focuses on will be familiar to many readers. In 2016 a California jury convicted Brock Turner, a white nineteen-year-old freshman at Stanford University, of three counts of sexual assault against Chanel Miller, a twenty-three-year-old multiracial (white and Chinese American) writer. The judge, Aaron Persky, sentenced Turner to six months in jail and three years of probation. Turner’s sentence also required him to register as a sex offender for the rest of his life. After serving three months in jail, Turner was released early for good behavior.
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Turner’s sentence of six months in prison caused outrage. Media outlets and advocates for sexual assault survivors characterized the sentence as the ultimate display of white male privilege. California citizens called for the removal of Judge Persky, and Santa Clara citizens ultimately voted to recall him in June 2018. Folks celebrated Judge Persky’s recall as a “victory . . . for girls and women everywhere.” But was the recall justice?
The recall sent the message that the only way to hold folks accountable for sexual violence is through the criminal legal system. This reinforces a number of misguided beliefs. Perhaps the worst among them is that incarceration makes women safer: As I outlined above, more severe carceral responses to sexual violence will not eliminate or reduce sexual violence. Moreover, most of the victims of sexual violence who choose to report to police never see “justice” of any kind: no conviction, no prison sentence for the offender. Police clear less than 30 percent of rape cases; they are, across the board, very bad at solving all kinds of crime.
More broadly, The Recall: Reframed points to the significant problem that Americans equate incarceration with accountability. Public outrage about Turner’s short sentence brushed off that jail time and probation were not his only consequences. He was banned from Stanford’s campus, he lost his swimming scholarship, and he was banned from ever competing for the United States in the Olympics, one of his lifetime goals. Turner also must register as a sex offender for the rest of his life. Sex offenders are intensely monitored, with limitations on where they can live, work, and visit. Turner will never be able to distance himself from what he did. If he ever tries, by failing to comply with registration requirements, he will face additional criminal penalties. These consequences are significant.
The prevailing sense that one can only be held accountable by spending years in prison is an impoverished vision of justice. In the words of participatory defense organizer Charisse Domingo, who is featured in the film: “It wasn’t that Brock Turner didn’t deserve the kind of careful analysis that the judge gave him. It’s that everyone does.”
The recall of Judge Persky itself communicates a bizarre vision of justice.
Only nine states allow the recall of judges—and for good reason. Allowing voters to remove judges because they disagree with their decisions dangerously politicizes the judicial role. Judges start making decisions based on factors unrelated to the accused and the circumstances of the offense. And the judicial role is already heavily politicized. Judges often make decisions based on tough-on-crime narratives and public perception. No judge wants to be on the local news for releasing someone into the community who ends up committing a violent crime. Election cycles also drive judicial decision-making. The closer judges get to reelection, the more likely they are to impose harsher sentences, including the death penalty. The recall process only elevates public perception as a central and perpetual factor in every sentencing hearing. In the 45 days following the announcement of the recall against Persky, researchers estimate that California judges sentenced 600 defendants to 88 more years in prison than they would have had it not been for the recall. This effect began as soon as the recall was announced, even prior to its result being known.
But most of those impacted by these harsher sentences are not people like Turner. In California, much like the rest of the country, Black, Indigenous, and Latino men are imprisoned at rates disproportionate to their representation in the general population. Black men are imprisoned at ten times the rate of white men; Black women are imprisoned at more than five times the rate of white women. In short, those most impacted by longer sentences are Black, brown, and low-income, not white college students from middle-class backgrounds. And the ripple effect of the recall is unlikely to stop at the borders of California.
What’s more, the recall was, in its genesis, an exercise of a certain kind of privilege disguised as populism. The recall campaign was spearheaded by prominent Stanford Law School professor Michele Dauber, a family friend of Miller’s. This level of personal support, carried all the way to a ballot victory, is far beyond the grasp of most sexual assault victims. During my years of practice, I have seen countless Black and brown survivors of sexual assault. None enjoyed such benefits. Instead, law enforcement frequently questioned the reliability of their reports, failed to investigate their cases, and criminalized their responses to abuse and sexual violence.
White privilege and racial bias were salient factors in Turner’s sentencing. Had he been a Black student at Stanford, I have little doubt that his prison sentence would have been longer. Judges, like everyone else, have implicit biases against Black people that can influence sentencing outcomes. Black men receive longer sentences than white men convicted of the same crimes. Had Turner been a Black teenager from a low-income neighborhood convicted of sexual assault against a white woman, I am confident his prison sentence would have been longer. Racist tropes of Black men as sexual savages who endanger white women have historically resulted in harsher consequences for Black men and boys. To even be accused of such a crime has often been a death sentence.
These inequities, however, should motivate us to tear down the system rather than look to it for justice.
In seeking to build a world without police and prisons, how do we make sure that we protect victims of sexual assault?
Mariame Kaba and Eva Nagao answer with an affirmation that abolitionists care about all survivors: survivors who never report; survivors who report but never see an arrest or conviction; survivors who are in prison; survivors assaulted at the hands of police; survivors who are sex workers; LGBTQIA+ survivors; survivors who are Black, brown, and live in low-income communities.
Protecting all survivors means developing practices focused on sexual violence prevention and survivor-centered support. As Ruth Wilson Gilmore says, “abolition is about presence” and “building life-affirming institutions.” It’s not just about the absence of police and prisons. Sexual violence is a public health issue, requiring a multifaceted approach that combats misogyny, misogynoir, and rape culture in the United States. If we actually cared about preventing sexual violence, we would invest heavily in comprehensive educational programs for our middle schools and high schools to teach young people about consent, sexual autonomy, and sexual health. Likewise, prevention programs would be robust on every college campus, given the prevalence of sexual assault among college students. Bystander intervention programs, for example, can teach college students to recognize high-risk situations and safely intervene.
Our responses to sexual assault would also be survivor-centered and varied. Most sexual assault survivors know their attackers, making it probable that they will be forced to see them again at some point after the assault. Their attackers may even live in their communities, go to their school, or work with them. Restorative justice practices allow people who have been harmed to talk directly to the folks who have caused harm to them, with hopes that the offender can understand the harm they have caused and take accountability for it. Some survivors need this, but there are few programs that allow sexual assault survivors to pursue a restorative justice process. Some survivors wish for their attackers to get help. Other survivors want nothing to do with their attackers, but want support for their own emotional, mental, physical, and spiritual healing. An abolitionist response to sexual violence must elevate and promote survivor-led, community-based programs that prioritize these needs over the interests of the criminal legal system.
The movement toward abolition is already underway, with women of color and survivors at the helm. INCITE! Women of Color Against Violence—a network of radical feminists of color organizing to end state violence and the carceral system—is helping to lead this work. Creative Interventions (CI), a national resource center focused on community-based interventions to end interpersonal violence, is as well. CI, INCITE!, and several other community groups and organizers partnered to create a practical toolkit that describes community-based interventions that can help to end interpersonal violence. The 576-page guide was the result of a three-year project in which CI facilitators worked directly with people who had experienced harm. The United States spends hundreds of billions of dollars on law enforcement and corrections each year. Devoting just a fraction of that amount to these organizations would do far more to protect survivors and prevent sexual violence.
Still, every community is different, and every survivor is different. There will be survivors who, understandably, see incarceration as the only form of justice. But the more we create, strengthen, and provide viable non-carceral options that prove to be more effective at preventing sexual violence and supporting survivors, the less we will all look to the criminal system for justice.
The Recall: Reframed challenges us to think about all survivors. Caring about all survivors means working to dismantle the carceral system and replace it with real solutions to preventing and responding to all violence. Investing in restorative and transformative justice programs, building more spaces to support and empower survivors, teaching young people about consent and sexual health, and educating folks about rape culture and how to disrupt it are a few places to start.
This review is part of a series created in collaboration with the Emancipator, Lux Magazine, and The Recall: Reframed’s outreach campaign. Through the summer, The Recall: Reframed is streamable on Inquest.
Image: Barthelemy de Mazenod/Unsplash
