Harsher sentences for those who commit sexual assaults are not the solution to the prevalence of these crimes, according to a paper published in the Southwestern University Law Review.
“While it is more or less assumed that longer sentences mean more justice, the reality is much more complicated and nuanced to the extent that our conception of justice is concerned with effectively preventing sexual harm and holding people accountable for that harm,” wrote Guy Hamilton-Smith, a Legal Fellow at the Sex Offense Litigation and Policy Resource Center at the Mitchell Hamline School of Law.
Sexual harms and violence in America are rampant, but few of these incidents are reported and even fewer lead to arrest, asserted the paper, entitled “The Agony & the Ecstasy of #MeToo: The Hidden Costs of Reliance on Carceral Politics.”
“No formal recognition that harm has occurred,” Hamilton-Smith wrote. “If one were to simply rely on statistics on convictions, one would conclude that sexual harms are actually relatively rare.”
High-profile cases where those who committed sexual offenses were not held accountable are held up as examples of the system failing, the paper pointed out.
“These failures give the impression that the system, if it works as it is designed to work, would not result in these outcomes,” Hamilton-Smith said.
“This impression is largely a false one. To the contrary, outcomes where our mechanisms of accountability fail might be more properly described as normal and routine.”
Police routinely fail to properly investigate cases of sexual assault or violence, and often stop rape victims from reporting by threatening them or clearing their cases, the paper said.
There is also a lack of proper training and staffing for investigating sex crimes. Statistics are often to manipulated to reflect more rape cases being solved than is accurate, the paper said.
“There exists an undeniable failure of accountability on the part of our mechanisms of institutional accountability — police routinely fail to appropriately respond to and address complaints, leading to a widespread belief that reporting would likely be futile, and further leave people who commit acts of sexual violence free to continue with relative impunity,” Hamilton-Smith said.
Sexual harms are also taken more seriously when white people are affected, Hamilton-Smith noted.
“Our legislation reflects this model of a ‘perfect victim:’ a white, innocent woman or child and the prototypical offender is a violent stranger,” the paper said.
Instead of addressing these systemic problems, taking steps to hold law enforcement and elected officials accountable, and providing services for survivors, there are usually calls for expanding state power, funding, or diminishing the rights of criminal defendants, according to Hamilton-Smith.
Many recognize that there is a crisis of mass incarceration in the United States, yet there has not been a movement for reducing mass incarceration or harsh penalties for those convicted of sexual offenses, the paper said.
“In the most punitive democracy on the planet, our culture stands at something of a crossroads: what if punishment doesn’t work?” Hamilton-Smith asked. “Increasingly broad segments of our society are ready to agree that our impulse to incarcerate and punish is at odds with broader conceptions of justice.”
Arguably one of the harshest penalties for those convicted of these crimes is being placed on a sex offender registry. People of color are more likely to end up on these registries than their white counterparts, according to the paper.
“The application of registries, in particular, perpetuate the very harms that they are supposed to vanquish,” Hamilton-Smith said.
The case of Brock Turner, a former Stanford University swimmer who was sentenced to six months in jail in 2016 for sexually assaulting an unconscious woman, led many to believe that the problem was that offenders were not being punished for long enough.
Hamilton-Smith argued that this is not the case: longer sentences should not be conflated with treating a case more seriously.
“Ramping up on consequences in the wake of cases like Turner’s also can only ever be likely to impact those individuals who lack the money, connections, resources, and power to avoid entering into the criminal legal system in the first place,” said the paper.
“While criminal defendants like Turner make tempting targets for punitive anger, scholars have consistently shown that people who are poor, who are sexual minorities, people of color, or other marginalized groups will be the most impacted.”
The full paper can be read here.
Maria Trovato is a TCR news intern.