by Claude Opus 5.5
Gruber argues that feminist reliance on criminal law has strengthened a carceral state with racialised effects. Does this case support calls for more prosecution or caution about them?
In The Feminist War on Crime (2020), the legal scholar Aya Gruber argues that, from the 1970s onwards, much of the American feminist movement against rape and domestic violence turned to criminal law as its main instrument. Mandatory arrest policies, no-drop prosecution, expanded offences and longer sentences were championed as ways of taking violence against women seriously. Gruber does not deny that these harms are real or that the law once ignored them. Her argument is that the turn to criminal law strengthened the punitive apparatus of the state, contributed to mass incarceration with disproportionate effects on poor people and people of colour, and often failed the women it claimed to serve, for instance by arresting women who did not want their partners arrested, or by subjecting complainants to processes they experienced as further harm. Her critique belongs to a wider debate about what the sociologist Elizabeth Bernstein called carceral feminism.
The case behind these seminars has produced loud calls for prosecution. The district attorney originally declined to charge, the case has now been reopened for a grand jury, and the governor has appointed the state Attorney General as special prosecutor. Does the case vindicate those calls, or does Gruber’s critique counsel caution?
The case for prosecution
At first sight, this case looks unlike the cases that drive Gruber’s concern. Her critique focuses on how carceral expansion falls hardest on marginalised defendants. The accused here were students at an elite private university. The public complaint is not that the state has been too punitive but that it may have been too lenient, and that relatively privileged young men were spared a process that others would not have been spared. If that complaint is right, calling for prosecution is not expanding the carceral state but asking it to apply its existing rules evenly.
There is also the complainant’s interest. She has, through her lawyers, disputed the basis on which the original decision not to charge was made, and has filed a civil suit. Whatever one thinks of criminal law as a general strategy, a complainant who wants a criminal investigation to be conducted properly has a legitimate claim to that. Equal protection of the law includes the protection of people who are harmed, not only the protection of defendants.
Finally, the special prosecutor was appointed citing serious questions about the police inquiry and the earlier decision. That is a concern about the integrity of the process, not a demand for harsher punishment, and it is the kind of oversight a fair system should welcome.
The case for caution
Gruber’s critique nonetheless has force here, in at least four ways.
First, the energy behind calls for prosecution is often driven by outrage, and outrage is not discriminating. The same arguments made in this case, that prosecutors are too reluctant, that complainants should be believed, that the standard of proof lets the guilty go free, are used to justify policies that apply to everyone, not only to privileged defendants. Reforms born of high-profile cases at elite institutions are typically implemented in ordinary courts, where most defendants are poor and many are people of colour.
Second, criminal prosecution may not deliver what complainants want. Research on survivors’ justice needs suggests that many want acknowledgement, validation, safety and a voice, and some want accountability without imprisonment. A criminal trial is adversarial, slow and focused on the defendant’s guilt. The complainant is a witness, not a party. If prosecution proceeds, she will face cross-examination and scrutiny that may be harsher than anything she has yet experienced, and an acquittal remains possible. Calls for prosecution sometimes treat it as a guarantee of justice when it is at best a chance of one.
Third, the turn to criminal law can crowd out other responses. Gruber argues that investment in criminal enforcement has drawn attention away from structural measures such as housing, economic security and prevention. In this case, the structural questions, about fraternity control of space, about university oversight, about the culture of a large group chat in which, reportedly, no one called the police, are not answered by prosecuting individuals.
Fourth, the reopening of a case under intense public pressure is itself something a careful observer should watch. Prosecutors are human, and political attention can distort judgement in both directions. The original decision not to charge has been criticised as too deferential; a new decision could be criticised as too responsive to public demand. A legitimate process is one that would reach the same result whether or not the world was watching.
Distinguishing two demands
The case seems to separate two things that are often run together. One is the demand for equal enforcement: that existing laws be applied properly, investigations conducted competently and decisions made without favour to the powerful. The other is the demand for carceral expansion: broader offences, harsher sentences, reduced protections for defendants. Gruber’s critique is aimed chiefly at the second. It is compatible with the first, and arguably requires it, since a system that applies its rules unevenly is part of what makes its punitive power unjust.
So the case supports calls for a proper, independent investigation, conducted without deference to the status of the accused or the institution. It does not obviously support calls for the criminal law to become a more central or more punitive response to sexual violence generally. And it offers reason to remember that, even at its best, prosecution addresses only part of what has gone wrong, and that complainants, accused and the wider community may need responses that the criminal law cannot provide.