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?