Justice Beyond Accountability

Long before the era of #MeToo, anti-violence groups led by women of color warned against the investment in criminal justice solutions to address violence against women—and connected the dots between sexual violence and state violence.

A woman leads a D.C. protest against police brutality. (Stephen Melkisethian / Creative Commons)

“The criminal justice system, an institution of violence, domination and control,” INCITE! wrote in their 2001 Statement on Gender Violence and the Prison Industrial Complex, “has increased the level of violence in society.” Indeed, women of color are too often targets of police brutality, mass incarceration and the rampant sexual violence that occurs in detention.

The Prison Rape Elimination Act of 2003 and the 2012 passage of standards for the elimination of sexual violence in detention represented steps forward in this fight—and now, new legislation introduced in the House by Reps. Jackie Speier (D-CA) and Barbara Comstock (R-VA) seeks to specifically address sexual violence committed by federal law enforcement officials.

The Closing the Law Enforcement Consent Loophole Act would make it rightly impossible for federal law enforcement officials to claim consent was given in cases where there was a “sexual encounter” with a person in their custody. (To clarify, any “sexual encounter” with a person in police custody should already be considered sexual assault; that person is under their control and cannot consent with complete freedom.)

Addressing state power and its subsequent violence is a crucial part of the movement to end sexual violence. Sexual violence is fueled by oppression and privilege, and state power—the power of the criminal justice system to control, confine and kill people—establishes a perpetual position of the power imbalances that create rape culture. The fact that law enforcement officials in 31 states can defend a “sexual encounter” with a person in their custody by claiming they consented is just one example of this power imbalance, and closing this loophole constitutes one more step in dismantling state power—but activists can do much more to take aim at the institutionalization of violence.

One of the many ways the state preserves its power is by identifying individuals as the sole cause of sexual violence without addressing the culture in which violence happens. Individual accountability matters, but sexual violence is also a community and cultural issue. We all sustain rape culture, and as neutral bystanders to inappropriate behavior that targets those without power, we remain complicit.

All of us, not just those of us who purposefully harm others, play a role in rape culture. We can dismantle it, rather than perpetuate it, by helping survivors find the justice and safety they seek without relying on state violence. By opening up dialogues and avenues that lead to other models of justice, we can give survivors a choice and alternate ways of ensuring their safety.

Evelyn Smith and Sam Harrell of Middle Way House elaborated on such alternative accountability models at the 2018 National Sexual Assault Conference—and acutely described how the criminal justice system was never meant to work. It simply cannot lock everyone up. They asserted that the state does not have a vested interest in ending violence, and that restorative and transformative models of justice can more completely respond to the needs of survivors in distinct contrast to the retributive nature of the criminal justice system.

Survivors’ basic needs are taken into account first and foremost in restorative justice models—including gestures like friends taking turns walking home with them after work or staying with them at night. Smith and Harrell describe the lens of these models succinctly: “people hurt each other because there is something wrong in our community.” Within this framework, the community works with both the survivor and the person who harmed them to address their needs.

Just as much as we need legislation that undermines state power, we need to build community and foster solutions that function outside of it. We must educate communities on what sexual violence is. When people see it, we must ensure that they are equipped to name it and encouraged to respond to it collectively.

We all play a role in rape culture, and we can dismantle it together.


Bianca Rosen is a writer and anti-rape activist based in the San Francisco Bay Area. She writes about sexual violence and advocates for sexual violence policy that is survivor-centered. To learn more about her work, you can go to her website or find her on Twitter and Instagram.