The Imperfect Alliance Between Law Enforcement and Feminism: An Interview with Aya Gruber

By Amanda Knox with Christopher Robinson

Aya Gruber is a law professor at the University of Colorado who teaches and writes about feminism and criminal law. 

Her new book, The Feminist War on Crime: The Unexpected Role of Women’s Liberation in Mass Incarceration, documents the history of feminist efforts to strengthen criminal law responses to gender violence. Her analysis reveals how those efforts have contributed to mass incarceration and offers an alternative perspective for how feminist activists and lawmakers can oppose gender violence without relying upon the criminal justice system.

Amanda Knox

How long have you identified as a feminist and as a criminal justice advocate?

Aya Gruber

The incarceration critic in me was pretty much ingrained from hearing stories about my mother being in the Japanese internment camps. This was one of those stories of race-based detention that, for better or worse, people recognize it as race-based detention. And today, there are still a lot of people who hold that our penal state and carceral system is somehow not race-based detention, but I think a lot of people are seeing that it’s a group of marginalized, demonized people who are being put into imprisonment conditions because of their race. So I had always been really familiar with the harms and evils and lingering problems of incarceration. I also think that, just as somebody who [at] pretty young got into philosophy and rights theories, I always would think about what does keep people from coming under the power of the state? It’s due process. It’s your rights. But are people really getting them? How could you ever be sure? How could it be that somebody does one thing wrong, and then end up in jail? I have this memory from being nine and thinking about what would have happened if somebody had committed a murder and they saw a little, nine-year-old girl with black hair walking away, and people put me in the area, and it wasn’t me. You could go to jail for life, and I thought, “Wow, the stakes are really high here. What is up with the government’s ability to detain?” I started interning at the Miami-Dade County Public Defender at around 15-years-old. So that part has always been around, but also I would say, for as long as I could remember knowing about sexual violence and sexuality, there was always this idea that women, and especially young women, lived in a world rife with sexual violence, and sexual violence was not only this great marker of their oppression, but also a life-ruining thing. You’d hear these stories from your friends, “Oh, I heard that this girl got raped and she’ll never be the same.” There was this idea that the biggest thing that women and young girls had to fear in the world was sexual violence. So I really had those two ideas about harm and justice swirling around in my head for many years, and they only started to come to a boiling point when I got to law school.

Amanda Knox 

When you say that came to a boiling point, what do you mean?

Aya Gruber 

In law school was when I really took seriously that I was going to become a public defender, and I really believed in that mission of representing indigent people from the carceral power of a state that I was convinced was racist, classist, and just not a force for good in society. But I did it with this lingering dread of having to represent batterers and rapists. I really was in this conundrum, like, “How am I going to do that?” It was easier to stand up and say, “I am going to represent a man charged with a non-domestic murder,” than to say, “I’m going to represent an accused abuser charged with a misdemeanor.” Somehow in my mindset, even a more minor act of gender violence was just something that I couldn’t stand up for because it had all these implications for equality. I had always understood that as the marker of women’s subordination. I had internalized a “dominance feminist” framework where one of the most powerful forces of subordination in the world is male-on-female gender subordination through acts of sexual violence. It’s a very powerful theory that I had internalized by the time I was at law school, so I was really psyched to be a public defender, completely dreading, thinking of ways I would tell my supervisor how I wouldn’t take a sexual assault or domestic violence case.

Amanda Knox 

Has the feminist advocacy movement always been pro-criminalization and pro-punishment?

Aya Gruber  

It actually hasn’t. And that’s been something that I have come to realize through years of being a public defender, a criminal law professor, and finally researching this book. There is this idea that to be feminist you have to be anti-violence against women, and to try to eradicate it, you have to use the tools of criminal justice. Being a feminist almost instinctually translated into being for more policing, prosecution, and punishment. After I left law school and I practiced in domestic violence court, I saw that it actually was really harming the defendants, but often also hurting the women victims. So I thought, “My gosh, this whole idea that invoking the tools of criminal law is good for women that I had just assumed was true, where did this come from?” I went back really to the dawn of feminism in the United States in the late 1800s, and went all the way through the #MeToo movement, passing by second wave feminism. The battered women’s movement, in the beginning, was incredibly anti-carceral and anti-authoritarian. It consisted of anti-poverty feminists who were for welfare rights, government benefits as a feminist issue. You wouldn’t be tied to an abusive man if you had the tools to live on your own. They included black feminists who recognized that there was gender discrimination within their own black communities, but also realized that they couldn’t take an unconditional feminist stance because they were allies with many Black men against white supremacy. There were Marxist shelter feminists who really believed that they would create these women-only shelters run like these egalitarian socialist institutions. They rejected criminal law as a racist enterprise of domination. And then there were family violence researchers intent on tracing the psychological and sociological factors underlying all kinds of family violence, whether it was male-on-female, female-on-male, child abuse. They found that social stressors like poverty, job loss, and racial discrimination underlaid this battering phenomenon. And so there were all these voices that had all these proposals and ideas that had nothing to do with criminal law. And yet, by the mid 1980s, the law enforcement, pro-policing, pro-prosecution movement had come to completely take over. And so I tell the story of how that happened.

Amanda Knox 

How is it that feminists became resistant to the idea that gender violence derives from social dysfunction, and moved towards it being a function of evil male individuals? And why is it that the social welfare policies and community policing models didn’t stick? 

Aya Gruber 

We’re now in a moment where there is this radical reimagining of what a world could be like without so much criminal law governance in it. Fewer arrests, less racialized police violence, fewer people in prison, fewer people under penal supervision. And a lot of people are asking me, “What are the alternatives?” The interesting thing about that question is it assumes that the way to deal with social dysfunction, whether it’s violence against women or even racism in society, the first way you deal with it is you make some criminal law and throw that law at it. There’s all this presumption that the natural inclination, whenever you see harm or wrong-doing, is to throw some criminal law at it. When in fact, in the early second wave feminist movement, they were really reluctant to engage with criminal law. It was really criminal law that was the alternative, that wasn’t presumption. And now we’ve gone full circle, where for at least 20 years, whenever you see any kind of social problem, whether you’re on the right or on the left, the first thing you jump to is that person should be in jail. How did that happen? Especially when you see self-proclaimed, left progressives, like feminists, doing it. How could that be? Well, it was not an accident. There was this incredibly deliberate political program that began in earnest in the late ’60s and really blossomed in the 1980s to woo a certain block of voters: Southern white dixiecrats. Southern white dixiecrats were southerners who held racist points of view, but voted democratic. The southern strategy was to court these voters by using crime as dog whistle racial politics. You’re really publicizing how crime is the biggest problem, and you’re putting a racialized face on this. It turned out to be pretty successful for Nixon and Republicans that came after that. And in the early ’90s, Democrats said, “We have to jump on the bandwagon of this tough-on-crime rhetoric. We better be the crime control party.” And it’s understandable. Crime rates were rising throughout the ’70s into the early 90s. There was some reality to that fear of crime, but whipping up that fear left people all throughout the ’90s and aughts, when there were precipitous decreases in crime rates, believing that crime was ascending year after year. So that was the first factor, the deliberate politics that wasn’t completely divorced from an on-the-ground reality of some rising crime rates. A second thing is a story of political economy, starting in the ‘60s, a move away from the social safety net and the idea of social welfare, post-depression, New Deal programming. Especially this idea of welfare, which became really racialized, came under attack and there was an ideology that scholars called neoliberalism, where the pursuit of capital within a free market almost became a moral thing. So people who lived in impoverished, marginalized communities were like that because they were lazy and criminal, and not because of the failings of the neoliberal capitalist system. You see a real shift away from governance through the social safety net to using the government solely as a mechanism to control people through crime control. It was really this idea of, “Here’s what government should do for you: it should jail these lazy, criminal people who are a blight on society and who are attacking the suburbs. It shouldn’t be big government welfare that funnels money to these lazy people and encourages them to be criminal.” This went on for 30, 40 years. And when this is what the governance structure was, and the media and everybody was saying, it’s not hard to imagine how we got to a point where everybody assumed that when you saw something bad happen, the appropriate state response is criminal law.

Amanda Knox

What does a non-carceral gender justice look like?

Aya Gruber 

There’s a few ways to do that. So right now, the way our criminal system works is you say, “This person sold drugs. Selling drugs is wrong. They did an intentional wrong. We have to hold them accountable. And there’s only one way to hold them accountable, and that is through applying the penal system, whether it’s probation or jailing.” That’s the strain of logic of current criminal law. And that might work on some offenses. Maybe for some offenses, the only kind of accountability has to come through some sort of keeping that particular person away from society. But if you take my drug example, we can question those assumptions. We can question the idea of drug dealing being an individual wrong, right? Is it because bad people deal drugs? Or is it because of a cycle of poverty? A lot of people are willing to say this about women who engage in illegal sex work or commit crimes, they’re willing to say, “Have they been abused themselves? Have they been suffering from domestic violence? What’s their background?” Well, if you look at most of the male drug offenders, they have trauma, and even organic brain disorder from accidents and beatings, that contribute to their internal decision-making processes. The second thing you can question is how intentional all this is. Was it intentional that they were born into a situation where they already had drugs in their bloodstream? Was it intentional that they went to a school that had no funding? I could go on and on and on. When we talk about intent, it’s always that last decision before the crime that we’re looking at, and nothing about all the bad luck factors that could have befallen the individual actor. And then the third thing, this is where people get really turned around. What does accountability look like? For somebody who perpetrated sexual violence because maybe they were a victim of sexual violence as a child, does accountability for them look like putting them into a jail cell where they’ll once again become the victim of sexual violence? Is that how we really want to hold somebody accountable?” At every stage of these criminal law logics, when people teach them, they just teach them like they’re true, come what may. There’s intent and then there’s this and then there’s that and then we put the person in jail, when really they are a series of choices that reflect our values and we can choose differently.

Amanda Knox

Looking back on that younger version of yourself, who was scheming of ways to get out of service to batterers or people who are accused of sexual assault, what do you say to her?

Aya Gruber  

I would say, “You yourself look at all these other crimes ― burglaries, even homicides ― and say, ‘What are the factors that really caused this crime? And what can we do about them? What does healing look like after these crimes? What does preventing these crimes look like?’ Why does none of that analysis apply to the person who engages in violence against a woman? Why do none of those considerations come in?” I don’t really, as the young me, have a good answer for that, other than it being so ingrained in me that the people who commit violence against women are necessarily the most privileged members of society who are wielding power against women, and when you use criminal law against them, you’re equalizing things. That instinct was so strong. I think a lot of young #MeToo feminists are under this impression. They’re thinking, “When I really go after sex abusers, everybody I will go after will be this oppressive, probably racist white guy, and I can make the world a little more equal because this guy on top of the hierarchy will go down.” The reality is, it does not work that way. Most likely it will be marginalized people, or people who had been sexually victimized themselves, or just an array of people who will fall into the carceral system when you broaden the definitions of rape to include things like lack of a yes. It can even be women swept up into that system, too. Also, you find disturbing things about the government’s role in sex regulation. If you are a student of the history of the way criminal law systems and logics operate in this country, you will pretty quickly say, “These feminist policies may not be totally right.” 

Amanda Knox

Do you have any final thoughts?

Aya Gruber

There’s so much more we didn’t talk about in the history of how feminists got caught up in all of this. You can draw straight lines between the 1800s and today. For example, in the 1800s, there was a massive anti-white slavery movement that translated on the West coast to an anti-yellow slavery movement, where feminists and other moralists are really concerned about Asian sex work, and what it resulted in was really draconian immigration laws and the virtual exclusion of Chinese women from the West coast in the late 1800s. You can draw a straight line from that story to some of the “brothel” interdiction that happens today, which is highly racist. You have white male police officers saying, “We’re going to rescue Asian women in this Asian model of prostitution,” then you end up having a lot of the women jailed or deported. We have rape reforms that occurred in the turn of the century where white feminists pushed to [raise] the age of consent, but then they went touring the South in favor of these rape reforms, stirring up lynch mobs against black men, and leading to a lot of reformatories for girls who were having underage sex. You can draw a straight line between that and some of the racialized statistics about who’s getting caught up on the offending end of the #MeToo movement. This alliance between the police and feminists at best has been an imperfect alliance. But it feels like, year after year, decade after decade, when younger, new feminists come to the movement, they don’t know this history. They only know the history of, “For too long, nobody’s punished. For too long, men have been getting away with this, getting away with that, and we need criminal law.” That’s the feminist folk tale. So I really hope that if people are interested in #MeToo, and in how feminists can combat violence against women without having to engage with a carceral state, I hope they do read the book, because it does give that alternate history where you can put into context not just what you gain by creating new gender crime laws or new feminist criminal laws, but also what you might be losing and giving up.