Thursday, August 6, 2020
Cynthia Godsoe (Brooklyn Law School) has posted #MeToo and the Myth of the Juvenile Sex Offender (Ohio State Journal of Criminal Law, Vol. 17, p. 355, 2020) on SSRN. Here is the abstract:
The #MeToo movement has brought much needed attention to the widespread and systemic nature of sexual harm. However, the broad, uncritical push to connect “#MeToo” to criminal prosecution has real downsides, revealing the pathologies and ineffectiveness of the criminal system and re-inscribing the very gendered and racialized hierarchies the movement seeks to eradicate. The mainstream understanding of #MeToo amplifies the omission of sexual harm from most conversations on decarceration and criminal legal reform. This side of the movement focuses almost exclusively on individual blame and punishment, ignoring the structural causes of gender violence, as well as meaningful survivor healing and offender accountability. This is true both as to the scope of criminalization, which is ever-expanding particularly as to sexual harms, and to the response once harm occurs, which is almost always to advocate for longer prison sentences and more restrictions post-release, such as sex offender registration.
This Symposium essay explores these issues by thinking through the way that the mainstream #MeToo movement treats and responds to youth who either engage in or are victims of sexual harm. Despite the fact that much of the #MeToo reckoning has focused on high-profile men who repeatedly exploit minors—think Jeffrey Epstein, R. Kelly, Kevin Spacey—minors themselves, some as young as eight, constitute one third of those adjudicated sex offenders and one quarter of those required to register, sometimes for life. At the same time, harm to young people who do not fit a mainstream mold is ignored. Thus, although girls of color are sexually assaulted at much higher rates than white girls, their victimhood continues to be overlooked and their responses to it even criminalized.
In this essay, I join abolitionist advocates in urging caution about the direction the #MeToo movement is taking, particularly with regard to young people. Our punishment of sexual harm with respect to youth reveals three significant pathologies of the broader criminal legal system. First, we rely almost exclusively on criminalization and punishment to address societal problems that have multiple causes beyond individual culpability. Second, the system is immensely costly, in fiscal and, most importantly, human terms, with very low effectiveness, both at preventing and at redressing harm. Indeed, punishing youth for sex offenses puts them at much greater risk for being sexually abused themselves by adults—undermining the primary stated goal of the sex offense criminal framework. Third, the criminal treatment of “sex crimes” reinforces the very gendered and racialized hierarchies that animate them. Girls and women of color continue to be undervalued and unprotected, while male survivors continue to be stigmatized and disbelieved. Indeed, Tarana Burke, founded the #MeToo movement to recognize non-normative victims, particularly girls and women of color, and recently lamented the current movement’s public face: “We have to shift the narrative that it’s a gender war, that it’s anti-male, that it’s men against women, that it’s only for a certain type of person—that it’s for white, cisgender, heterosexual, famous women.”
I conclude with the counterintuitive suggestion that decriminalization and decarceration efforts should not only include conduct labelled as “sex offenses,” but likely should begin with them. Transforming our approach to sexual harm is one key piece of an abolitionist vision that seeks to move beyond carceral approaches to achieving racial and gender justice.