Issue 4 (Vol 13) By Janelle Koh The role of the criminal law is generally understood as synonymous with the role of the criminal justice system. The process of passing through the criminal justice system has been well documented in literature and popular culture, from the police, to sentencing, to prison, and then beyond (or back again, as the case may be). In a system characterised by actors and practices ‘on the ground’, people lose sight of the criminal law’s wider ideological role in society. Put simply, the objective of the criminal justice system is the attribution of criminal responsibility. Most of the time, the attribution of criminal responsibility involves an attribution of moral responsibility too. For example, murder is both criminal and wrong. But what happens when the concepts of moral and criminal responsibility do not align? What happens when criminal justice processes (choices to arrest, prosecute, sentence) are required to attend to injustice, yet a crime has not been committed? It is in this context that the social justice movement takes the reins, and occasionally drops them. This is particularly the case in the context of the Aziz Ansari incident. The incident allegedly involved Ansari perpetrating certain sexist acts in the context of initially consensual sexual activity. Such acts allegedly ignored a woman’s non-verbal cues which signalled a withdrawal of consent. This less-than-catchy articulation is what some commentators consider to be part of the problem - that we do not have the language to adequately characterise this type of sexism. However, the problem is only a failure of language insofar as the term ‘sexism’ fails to be meaningful, and is unable to effectively attribute moral responsibility. In other words, it becomes unclear how, or to whom, we are to attribute blame. As a result of this conceptual confusion, the social justice movement has been unable to mete out a punishment for Ansari that is half as satisfying as that which they dealt to Harvey Weinstein through the #metoo campaign. The response to the Weinstein incident has been understood as a resounding win for feminism. Indeed, it is an acknowledgment that the social justice movement can effectively engage in attribution of responsibility, activated by the touchstone of ‘sexism’. Yet, the lack of a concerted response to the Ansari incident leaves me doubtful of this perception. While the debate contains a spectrum of different and often valid opinions, the lack of a consensus on how to treat such incidents on a societal level leads to the continuation of a ‘business as usual’ approach in social settings. At its most basic level, sexism is a system of oppression that operates against women. It is clear that the Weinstein and Ansari incidents are both reflective of sexism in operation. Yet Weinstein paints a more convincing picture of sexism at work than Ansari does. The allegations against him piled up like law school readings at the end of semester. Multiple incidents could all be connected to the one man. It didn’t hurt that this man was unlikeable, notorious for his temper, and perpetrated these incidents within an industry that regularly objectifies women. All these conditions came together in a perfect storm to mimic the systemic nature of sexism, and all conveniently in one place. There was a system of sexist acts, an oppressor who looked oppressive, and multiple women who could testify to the above. Weinstein was the perfect test case, and the social justice response was simple - destroy his career, which was so marred by these sexist acts that he probably deserved it. Yet needless to say, the problem with a test case is that more often than not, a perfect plaintiff is not present. In the Ansari case, we get a committed feminist as the oppressor and a single sexist act, reported by an anonymous woman. Encountering a ‘nice guy feminist’ in as progressive an environment as this law school is far more likely (and of course, does happen) than encountering the next Harvey Weinstein, and as a community committed to the practice of justice, we should learn how to think better about how we attribute responsibility in cases of sexism - both in terms of the situations in which we regard as worthy of a response, as well as how we respond. The answer to the former is easy enough - all acts of sexism deserve a response. No act of sexism deserves to be relegated to silence, and the more we stall on responding to incidents such as Ansari’s, the more acceptable silence as a response becomes. However, if we are to have a social justice movement that effectively responds to instances of injustice, it cannot simply be a one-trick pony that suggests the same automatic responses to instances of real injustice. It must be not just a movement, but a system in every sense of the word. Where criminality deserves a criminal justice system, does society deserve a social justice system too? See more:More from this issue:
Vaped Crusader
19/3/2018 09:46:51 pm
I really don’t see how the sort of vigilantism you are calling for is any different than the sort of outrage and mass hysteria whipped up over things like ‘gamergate’ or the latest story of welfare bludging single mothers on Today Tonght. You see something which you think is prima facie unjust and before waiting for a full detail of the facts or evidence you want to launch an extra-judicial crusade of harassment and abuse to ruin somebody’s career or their life more broadly. The possibility that there may be other sides to the story, or the story as a whole being false, is ignored in favour of some sort of self righteous need to just make a point. For every genuinely despicable person like Weinstein who’s life is ruined, there will be many more who don’t deserve it, but I suppose that’s a small price to pay for advancing ‘the cause’.
Edmond Stewart
20/3/2018 07:59:02 pm
I'm really not a fan of this logic. Here are a few reasons why:
Benjamin Blackstone
20/3/2018 08:55:14 pm
Yes, let’s talk about the presumption of innocence shall we. How amazing that a bunch of clueless idiots on Twitter think they are better positioned to determine questions of fact and evidence, not even to mention questions of law, than a court. If you happen to believe that too, well I have some towers in New York made from unmeltable steel beams to sell you.
Edmond Stewart
20/3/2018 09:36:16 pm
As inclined as I am to callouts, I think comparing me to Pol Pot seems a tad inaccurate. The core of what I was getting at wasn’t to say that we should offer up a few innocents to the alter to catch all the bad guys. An analogy might help illustrate what I’m saying; We are happy to call convicted criminals that even though we personally haven’t reviewed all the evidence and made a finding ourselves, we’re also happy for sanction to be applied to that person. Despite not being 100% certain we’re happy to punish that person, in proportion to our confidence in their guilt. In a social context, we’re broadly happy to take the word of our friends who’ve personally interacted with another person and say that the third party is a “bit of a shit bloke”, despite not knowing for sure ourselves and we apply a sanction (i.e. avoiding that person) in proportion to the confidence in our decision (i.e. pretty confident but not 100% certain). Notice that there is a sliding scale of confidence, and proportionality between confidence and punishment. I for one, am perfectly happy to come out and take proportionate action against people who are called sexual offenders by their victims that’s proportionate to the confidence I have in those victims claims.
Benjamin Blackstone
20/3/2018 10:28:13 pm
You talk about having confidence in the findings of a court or the word of a friend, but you haven't made a solid effort to justify why your default starting position is to "believe the accuser" unless you happen to know the accuser personally and have reason to think he or she is trustworthy. The only thing you cite is the low frequency of false accusations, and maybe this adds some initial weight to forming a judgement that a person is less likely to be making a false accusation than a true one, but this absolutely is not enough to go on to seek the utter ruination of the accused's life, and it is totally insignificant in the face of all other evidence including the circumstances and the trustworthiness of the individuals in question, which are questions better left to be determined by a court than the rabid imbeciles of social media.
Alice Kennedy
20/3/2018 11:33:16 am
Actually, consent can be retracted non-verbally under New York law, under its requirement of affirmative consent. That can also happen here in Victoria, where non-verbal withdrawal of consent is upheld by the broad, non-exhaustive definition given to situations where consent is not present (s36(2) of the Crimes Act). The real issue is how we define a clear, non-verbal cue that amounts to withdrawal of consent, and how we prove that occurred beyond reasonable doubt.
Lou
24/3/2018 01:33:10 pm
Agree so much with you Alice. A policy issue which looms large is for this kind of legislative change is the ability for it to used particularly against PoC - arguably this happened with Ansari
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20/3/2018 07:38:56 pm
https://www.theatlantic.com/entertainment/archive/2018/01/the-humiliation-of-aziz-ansari/550541/
Jacinta Cox
20/3/2018 09:24:23 pm
I can't even begin to express how problematic and dismissive Caitlin Flanagan's piece is. The following quote from the article makes me so sad, angry and hurt for everyone who has ever been coerced into sexual behaviour.
Systems
20/3/2018 08:03:50 pm
You will realise that once you are required to sketch out what exactly this "social justice system" would look like and operates. It will begin to look like and possess much of the the same values, limitations, principles, goals, as the criminal justice system. Why start from scratch, why isn't reform the answer? Unless you fundamentally disagree with the inherent principles of our Criminal Justice System, such as innocent until proven guiltily, in which case what a frightening idea, there's no need for a completely seperate system.
I have a penis
20/3/2018 09:19:55 pm
The Ansari "case" fell apart due to lack of evidence, nor possibly even evidence in favour of his version of events? Idk, its been a while.
Nick
20/3/2018 10:41:18 pm
I highly recommend this piece written by Margaret Atwood on the topic:
Feminist
21/3/2018 07:45:55 am
You are a misogynist if you believe that female autonomy can be handwaved away (as Jacinta Cox does above) as non-existent in any sexual situation due to "unequal power dynamics."
Profit a prendre
21/3/2018 10:16:39 pm
Trusts readings were pretty difficult this week!
NPJ
22/3/2018 08:36:27 pm
Janelle, thank you for writing this article. Comments are closed.
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