Sexism: a matter for criminal justice, or social justice?

19/3/2018

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?

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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’.

Certainly people are tried in the court of public opinion every day of their lives, but god help us if the social justice warriors appoint themselves to control of the sentencing.

Edmond Stewart

20/3/2018 07:59:02 pm

I'm really not a fan of this logic. Here are a few reasons why:
First and most importantly, your approach, I believe, is too offender centric. We can talk about the presumption of innocence all day long but there is something deeply wrong about the fact that countless women are subject to assault and the legal system fails to recognise the wrong done against them or punish the offender (whatever the varying reasons of failure may be). Discussions of justice for offenders is very important, however, it is unacceptable to consider this in a vacuum without looking at the cost to victims, if your system manages to get 1 in 100 offenders avoiding a single false charge but leaves 90 in 100 victims behind, I would say that system is failing. I think, prima facie, it’s more equitable to have a system with marginally higher punishment of innocent people coupled with a radically higher proportion of victims being given justice. Pointing to a single instance where the ‘trial by twitter’ has failed isn’t a good reason to abandon that system of response.

Second, you're falsely equivocating the meaningfully distinct types of punishment here. One is in the opinion other people form any given offender and the actions they take in response to an opinion (much like day to day life where you can be less generous to someone based on an opinion that they’re mean, well founded or not). The other is handed out by the state, is violent, extremely oppressive (prison is, shockingly, not a nice place to spend several years of your life) and more difficult to reverse than (contrast an appeals process to someone telling a different story about how, in fact, the person you previously hated is actually a good person). The underlying rationale for the presumption of innocence is based in a large part on the unique nature of state sanctioned punishment, if that pillar of the rationale for the presumption is removed then ‘trial by twitter’ becomes more palatable.

You’re basically appealing to fanciful possibilities and straw manning the case of people advocating for social punishment. Even the very high threshold of beyond reasonable doubt leaves a potential for “some other side to the story”. We don’t refuse to punish criminals because there might be a miracle witness out there who hasn’t come forward yet, if we scale that down both in degree of punishment and standard of proof this form of social justice again, becomes more reasonable.

As a bit of a final note, I’m not writing this for you, anyone who uses the phrase social justice warrior as a pejorative term clearly isn’t going to be swung around on the issue (seriously just consider the literal meaning of the words and ask to yourself why you feel comfortable mocking someone for sincerely fighting for social justice, “misguided” or not). This is for everyone else who feels uneasy trying to reconcile that presumption with an outrage at sexist injustice. Know that they are different things, don’t be lured by shallow arguments and buzzwords that twist what we’re taught to encourage literal inaction in the face of a very clear problem.

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.

The idea that innocent people must be sacrificed in order to secure convictions for the genuinely guilty is extraordinarily regressive and authoritarian. This is the same attitude that was used to justify the detention of innocents in Guantanamo Bay without trial and subjected to ‘enhanced interrogation techniques’. To quote Dick Cheney, “I'm more concerned with bad guys who got out and released than I am with a few that in fact were innocent." It is the same logic that justifies the detention of refugees in hellholes like Manus, where the suffering of innocent refugees is considered an acceptable price to pay to combat illegal migration.

From Blackstone to Benjamin Franklin the principle that “it is better to let 10 guilty persons walk free than that 1 innocent person should suffer” has been a cornerstone of the our criminal law. Why? Because ‘when innocence itself, is brought to the bar and condemned, the subject will exclaim, 'it is immaterial to me whether I behave well or ill, for virtue itself is no security.' Your position on the other hand is more in line with Pol Pot and how belied that it is “Better to kill an innocent by mistake, than spare an enemy by mistake”.

The disparaging use of the term social justice ‘warrior’ is obviously meant to mock the puritanical self-righteousness of those who think of themselves in ridiculous grandiose terms of fighting evil and the forces of darkness, standing before the black gate of Mordor for all that is good and right in the world. It is used in the same mocking sense as “do gooder”. Yes everyone wants to ‘do good’, the mockery goes to their over inflated opinion of themselves and heir talents, and their inability to think outside of two dimensional paradigm of good and evil.

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.
Now, about that confidence, I’d encourage you to look at the evidence surrounding the frequency of false accusations of sexual assault (spoiler alert, it’s incredibly low) and then consider logically whether someone is likely to make a false accusation when even if the accusation is true, people coming out face incredible harassment and abuse for that claim. I think that’s a brave decision and one that should be overwhelming supported unless you can conclusively show it’s a false accusation. Quote famous scholars as much as you want but you haven’t actually engaged with the point of my comment, or the article.
You seemed pretty smug calling out my “obvious” misunderstanding of mockery, but again, didn’t really pause to think about the unspoken implications of what you’re saying. You’re basically (even if you don’t intend it) tarred all of the people involved in the same movement against sexism with the same brush of being self-righteous puritanical morons. I sincerely hope you don’t believe the entire movement of people fighting against sexism are narcissistic narrow minded “do gooders”. Alternatively, your comment could imply that the problem isn’t serious or deserving of being described as evil? I’ll leave that one hanging. Finally I’d add that even if you are correct, there is an obvious chilling effect on discourse around sexual assault if you mock people who do advocate for a particular cause, I’d say in a society where the voices of women are silenced far too often you should err on the side of not lashing out with mockery against those who do speak up.

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.

It seems perfectly logical to me that someone might make a false accusation in order to ruin a person's life. They are a great many motives one can think of for such an act; vengeance, publicity, fame, career positioning and advancement, spite, political maneuvering and sabotage, general aggrievement, and so on. An accuser's life may be of relatively little worth that they think there may be more upside opportunity than downside risk for making an accusation. An accuser may be seeking an excuse to cover his or her own infidelity. There are in fact a great many rubbish people in the word who have no qualms about these sorts of things, and just as many of them are women as they are men. If the accuser is given anonymity, which they usually are, there is literally no downside risk to their actions.

But neither this, nor recorded statistics about false accusations, are enough on their own to justify launching crusade against an individual, or dismissing a claim out of hand. The facts and evidence in every case have to be assessed by people who are competent to do so.

I do wonder how you would feel if you were personally falsely accused of rape, your prospective law career ruined, with your accuser receiving overwhelming support by default and the onus placed on you to conclusively prove the accusation is false, and that even if proved false having already had irreparable damage done to your future. I do wonder whether your conviction that it is "more equitable to have a system with marginally higher punishment of innocent people coupled with a radically higher proportion of victims being given justice" would be quite as strong, if you ended up as the one sacrificed upon the altar.

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.

So we do have the ‘language’ in law to describe the kind of act that Ansari is alleged to have committed, according to your construction of events. It’s called rape, or sexual assault. And we probably have the language to define a 'clear non-verbal cue.' Whether or not it amounts to withdrawal of consent would be dependent on the factual situation.

Maybe you think there needs to be a totally new offence relating to coercion, assault and non-verbal cues. Maybe you’d like to shift the evidentiary burden, or get rid of a defence like reasonable belief there was consent (available under Victorian law). But the point is that you actually have to argue for that, and acknowledge that the resulting issues in law and policy can make progress slow, and may give rise to cogent arguments against reform. That’s not ‘stalling.’

Also. In the absence of a legal determination that Ansari is guilty of sexual assault, you probably shouldn’t make the assertion or implication in print that he ‘perpetrated’ a sexist act that amounts to sexual assault. We only have conflicting accounts from Babe.com and Ansari himself. I think it would be wise to print a correction that Ansari has not been found to have perpetrated any felony under New York law and the views you express are your opinion only.

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/

I agree with Alice and much prefer Caitlin Flanagan's Atlantic take on the Aziz Ansari saga.

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.

Referring to magazines she read growing up Flanagan states "in one essential aspect they reminded us that we were strong in a way that so many modern girls are weak. They told us over and over again if a man tried to push you into anything you didn’t want, even just a kiss, you told him flat out you weren’t doing it. If he kept going, you got away from him. You were always to have “mad money” with you: cab fare in case he got “fresh” and then refused to drive you home. They told you to slap him if you had to; they told you to get out of the car and start wailing if you had to. They told you to do whatever it took to stop him from using your body in any way you didn’t want, and under no circumstances to go down without a fight. In so many ways, compared with today’s young women, we were weak; we were being prepared for being wives and mothers, not occupants of the C-Suite. But as far as getting away from a man who was trying to pressure us into sex we didn’t want, we were strong.

Was Grace frozen, terrified, stuck? No. She tells us that she wanted something from Ansari and that she was trying to figure out how to get it. She wanted affection, kindness, attention. Perhaps she hoped to maybe even become the famous man’s girlfriend. He wasn’t interested. What she felt afterward—rejected yet another time, by yet another man—was regret. And what she and the writer who told her story created was 3,000 words of revenge porn."

This completely fails to capture the unequal power dynamics in play and the broader social issues surrounding consent that we need to consider. Not to mention the blatant victim blaming rhetoric that is frankly exhausting. I actually think that the babe.com article was poorly executed and focused on minute details (her wine choices; her outfit) that detracted from the core issue. Grace stating “let’s relax, let’s chill” was absolutely a verbal direction for Ansari to slow down. That he did not, and that Grace says she felt pressured to go along with it is something that is repeated all to often. Instead of thinking of stories like these as “destroying” a man’s life we need to think of them as igniting a necessary conversation, for both the women, trans & non-binary people that think “I’ve been there” and the (predominantly) men who look back on their past behavior and feel “surprised and concerned” that everything wasn’t really okay all along.

Flanagan also ascribes Grace’s “weakness” to a condescending presumption that Grace simply wanted companionship and perhaps commitment from Ansari, without considering that Grace might have just been trying to have a casual sexual exchange in which the actions were equal.

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.

There are many cases where media hype did actually destroy careers, such as Dominique Strauss-Kahn, who had to step down from the IMF due to a media released rape allegation, which was later found to lack credibility. He maintains it was orchestrated by his political enemies.

Or Majak Daw, who faced a suspended athletic career over a rape charge, He was let off when texts were found of the girl telling her friend how much she enjoyed the sex the next day. She admitted it was due to taunts on the school yard that compelled her to say he raped her.

I'm not saying rape doesn't happen, or that it doesn't go under reported. There are a lot of systems in place to essentially scare and intimidate women into silence. But as a man, its terrifying to think that you can be the head of the IMF and brought down over something like that. I would be a lot more scared if I were a successful black man.

Therein lies the antithesis to your argument of media outrage. It is largely a manufactured product, free of proper scrutiny and procedure, that we call laws.But it has been shown to be effective in the past at destroying a target, guilty or not. I understand there's trepidation over speaking to authority figures over personal, and unfortunately shameful, acts committed against you. But I will always be skeptical when a person finally gathers up their courage and calls a journalist before the police.

As an aside, had you heard of babe.com before this story, I doubt it. Its almost as if they needed a marquee event to draw people in...

Nick

20/3/2018 10:41:18 pm

I highly recommend this piece written by Margaret Atwood on the topic:

https://www.theglobeandmail.com/opinion/am-i-a-bad-feminist/article37591823/

"The #MeToo moment is a symptom of a broken legal system. All too frequently, women and other sexual-abuse complainants couldn't get a fair hearing through institutions – including corporate structures – so they used a new tool: the internet. Stars fell from the skies. This has been very effective, and has been seen as a massive wake-up call. But what next? The legal system can be fixed, or our society could dispose of it."

"If the legal system is bypassed because it is seen as ineffectual, what will take its place? ... In times of extremes, extremists win. Their ideology becomes a religion, anyone who doesn't puppet their views is seen as an apostate, a heretic or a traitor, and moderates in the middle are annihilated ... The aim of ideology is to eliminate ambiguity."

The legal system has been ineffective so far for seemingly ambiguous cases like Asari's; how can the law address a clearly problematic situation that likely didn't amount to a crime? Trial by Twitter, on the other hand, is a dangerous solution. Toeing the line between individual empowerment and maintenance of a foundation of our justice system is difficult where a comment on either side is liable to be met with either outrage or ridicule.

As law students, we are uniquely poised to be able to address an issue like this; how can the law change to accomodate social justice without resorting witch-hunts based on blog posts and rumours? I believe that we have the tools to find the solution, the hard part is not getting sucked into the wormholes of ideology that prevent level-headed discussion 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."

Grace could have left. At any time. She gave Aziz a consensual BJ. Her, and women, are autonomous people, and deserving of respect beyond "Well, as a woman, her decisions are always impaired because of the patriarchy".

No, we don't need a different system then we have under the law. Margaret Atwood is right to be concerned by #metoo's worst aspects.

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.

While I don’t agree with all aspects of it, clearly it has gotten some attention and is inspiring a lot of passionate debate. Though salient points are raised by both sides of the discussion, I do feel like much of the argument is at cross-purposes, so I hope with this comment I can – worst case scenario, move beyond that to something more constructive, or best case scenario, bridge some of that disagreement to common ground.

I think we would be able to agree more about is that men in general could be more thoughtful of their behaviour in their romantic and sexual encounters. Unfortunately, if you tell them that they are being sexist or to check their privilege, that is likely to fall on deaf ears or spark knee-jerk reactionary responses. I think a better approach, at least in the context of this issue, is to make men consider how much of a genuinely intimidating physical threat they can be. Most men don’t spend a lot of time thinking about, that – even if they’re not super tall, or aren’t hulked out after bulking and lifting weights – they are almost certainly larger and more physically strong than any woman they go on a date with. If they don’t see themselves as a ‘bad guy’, and are not generally violent or aggressive people, difficult for them to conceptualise that the woman they with may be fearful of physical retaliation if they don’t accept his advances. Further to that point, most men (because they aren’t women, and have never experienced a woman’s perspective) don’t realise just how much women are socialised to be more agreeable and not assert themselves in many cases. I think many men would benefit from being more thoughtful about this, and it does of course mean that there is some complexity to consent beyond “Well she didn’t say no” (though, where that line ultimately falls is a decision for the legislature, not for the social domain, which is where we might disagree.)

However, as much as the above is important, and I do not for a moment suggest these things are exactly equivalent, I do also think that at the same time it would be useful to move this conversation forward for women to consider the experiences of men. In particular, the pressure on men to “lead” on dates. Whether it is biological, or cultural, or a combination of two (I’m not particularly interested in jumping into that particular discussion), there is an immense amount of pressure and expectation for men to be the one who initiate and advance further in romance, including getting more physical. This can lead to a lot of clunky attempts. If the guy does is not particularly smooth, and/or the girl just isn’t that into him, this can lead to some deeply awkward situations, or make that dude come off as a creep. By no means do I suggest that if a woman feels uncomfortable if a guy tries to initiate or escalate things further with them, their experience is illegitimate or they have no right to feel that way. What I am saying is that not all poor or rejected sexual/romantic advances are sexist, let alone worth deserving of being treated as socially repugnant as actual sexual harassment and assault (for further good enunciation of this point, check out the top comment on this post https://www.reddit.com/r/AskMen/comments/3z8o75/why_dont_men_get_as_much_of_a_thrill_over/ - I know linking a reddit explanation might appear to be the worst kind of internet mansplaining ever, but I’d recommend at least considering the comment, even if you don’t fully agree)

It is possible that, as you suggest in your article, Aziz genuinely ignored a number of clear signs that Grace was not consenting and that he is an abuser. It’s also possible that he made some clunky advances that didn’t go down well with Grace and it was just a bad date. It’s also possible that it’s something else entirely that might better capture how messy sex, particularly on a first date, can be. The only two people who can possibly know the whole truth are Grace and Aziz. And even then, as any law student who studies Evidence will know, recollections aren’t perfect. It is coloured by emotion, time passing, and other agendas and experiences. The cynical will suggest that Grace is vindictively shaming Aziz with falsity, or that Aziz is covering up for his abhorrent misbehaviour with lies. What I think is more likely is that two people remember an event imperfectly and experienced it differently. Perhaps that is the only vice Grace and Aziz have truly committed. And they have both been publically shamed and vilified for it perhaps more than either deserve. I believe it is time we moved on.

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