Feminist legal and political philosopher Jean Hampton was not alone when she argued in 1998 that gender-based violence is “perhaps the most important tool in the oppression of women.” Most feminist philosophers would agree that ending gender-based violence is an essential goal of achieving gender justice.
Of course, this is much easier said than done.
Since the late 1980s, one major tool that some feminist activists have employed in the fight against gender-based violence is the criminal legal system. In the last few decades, criticisms of the American criminal legal system, especially surrounding its disproportionate impact on black people, have caused many feminists to question whether or not the criminal law can be used to advance feminist goals.
Of course, answering this question requires empirical investigation, not only normative debate. But some philosophers have valued criminal punishment as a feminist end-in-itself. Throughout the 1990s, Hampton made the case that the criminal legal system could offer a compelling reason to punish those who commit gender-based violence because of criminal punishment’s unique capacity to express moral condemnation. This argument did not rely on the claim that increased prosecution or punishment of gender-based crimes would deter them, but instead argued for the intrinsic value of punishment as expression of the victim’s value. In particular, she made the case that when a government punishes those who commit gender-based violence, it expresses women’s equal value.
Though Hampton’s argument has intuitive appeal, I raise concerns about feminist political activity aimed at strengthening the criminal justice response to gender-based violence based on expressivist arguments. I do not, however, suggest anything about how individual victims of such violence should seek justice, safety, or support.
While punishment can express the equal value of women and condemn the structural wrong of gender-based violence in an idealized world, in the United States (and Canada), the expressive power of punishment is too blunt to convey nuanced messages about gender-based violence. These messages are typically drowned out by other, more powerful sexist messages or co-opted by racist messages. Of course, this argument on its own does not offer conclusive evidence that feminists ought not to use criminal law, but it does undermine one intuitively appealing reason for doing so.
Hampton’s Endorsement of Punishment’s Capacity to Express Women’s Worth
Hampton incorporated insights from Joel Feinberg’s explication of the expressivist functions of punishment to develop a feminist penal expressivism that centers on criminal law and punishment’s capacity to communicate moral norms. For Hampton, the American and Canadian criminal legal systems express dominant social values, and the failure to prosecute and punish rapists is emblematic of the systemic lack of value women’s lives have in these societies. Hampton writes:
“When a serious wrongdoer gets a mere slap on the wrist after performing an act that diminished her victim, the punisher ratifies the view that the victim is indeed the sort of being who is low relative to the wrongdoer. When the American courts, until recently, responded to spousal abusers with light punishment or no punishment at all, they were expressing the view that women were indeed the chattel of their husbands. When the present day Canadian courts use a sentencing policy that gives certain types of sexual offenders lighter sentences, on average, than those given to people who have been convicted of burglary, they are accepting a view of women that grants them standing similar to-but slightly lower than-mere objects.” (1691–1692)
Because criminal prosecution and punishment are so strongly associated with moral condemnation, punishment has a special capacity to convey moral norms. For Hampton, punishment is the appropriate response to the wrong of criminal acts because punishment expresses the value of the victim and a condemnation of the wrongful act. In Hampton’s model, criminal acts are wrong because they express the idea that the perpetrator is more important or valuable than the person they are wronging (or, depending on the crime, the whole political community). Criminal acts diminish the humanity of victims. For example, not only does rape cause physical and emotional harm to the victim, but rape is also a moral wrong because the act expresses the rapist’s refusal of the victim’s equal humanity. Criminal law, and punishment in particular, is the only way to respond to the wrong of rape and other criminal acts. Punishment is a counter-action that expresses the equal value of the victim and demotes the perpetrator from the higher place he took for himself.
One need not take on the full Kantian baggage of Hampton’s expressivist theory to endorse the basic idea that punishments express a community’s commitment to the value of the victim and condemnation of acts that diminished her. Feinberg argues that punishment is uniquely able to express our condemnation of the wrong of rape and other crimes because “certain forms of hard treatment have become the conventional symbols of public reprobation.”
Hampton’s argument that criminal acts express disrespect for their victims is meant to justify all punishment practices, not just punishment in response to gender-based violence. Nevertheless, Hampton regularly raises gender-based violence as a paradigmatic example of the importance of punishment. As the quotation above highlights, she finds the relative under-prosecution and light punishments of those crimes that most affect women to be particularly indicative of structural sexism in the United States and Canada.
Hampton’s theory does seem to capture some strong intuitions. First, in the United States, where incarceration rates are notoriously unmatched, our criminal legal system does express our values. Many feminists expressed outrage when Stanford swimmer Brock Turner was sentenced to only 6 months in county jail after being found guilty of the sexual assault of Chanel Miller near a frat party. The light sentence and the judge’s words seemed to convey that Turner’s life was more important than Chanel Miller’s. Hampton’s theory offers a philosophically nuanced explanation of this intuition.
Second, her account explains how the reticence to define marital rape as a crime—even today, many state laws punish marital rape as less serious than non-spousal rape—and the under-prosecution of domestic violence and rape stem from the ideological view that the government ought not to intervene in the family. Many feminists have done long and hard work to bring the private sphere out of the shadows and demand that justice extend into family life and other intimate arenas. Despite this work, the ideology of the separation of the public and private spheres still actively shapes many of our institutions and social practices and likely is at work in the lack of a meaningful criminal response to gender-based violence. Hampton’s application of punishment’s expressive power to the circumstances of under-prosecution of gender-based violence in the United States highlights that such violence is structural. Rather than isolated instances of violence, gender-based violence is part and parcel of gender oppression.
Punishment is Not a Good Vehicle for Expressing Counter-hegemonic Messages
While Hampton offers a helpful diagnosis of the present state of affairs, her argument about the necessity of a punitive response to express the value of victims of gender-based violence raises two difficulties.
The criminal legal system on its own is not equipped to express counter-hegemonic messages, particularly messages meant to undermine structural violence. In part, this is because the criminal legal system is not actually designed to communicate nuanced moral ideas. Rather, the criminal legal system primarily examines the actions of individuals, presenting violence as an atomistic, one-off event. Unlike the feminist view of gender-based violence as part and parcel of a bigger structure of gender-based oppression, the criminal law can only address acts of gender-based violence as isolated events. Courts (and more often, prosecutors who secure plea deals) determine if there is enough evidence to find a criminal defendant ‘guilty’ of violating a particular criminal code, and victims only play the role of witness. This raw material of conviction and sentence length only gains meaning in the broader social context.
Punishment does in fact express the hegemonic values of the United States, but only because that broader social context gives convictions and sentences meaning. Merely attempting to amp up the number of prosecutions and the severity of punishment for gender-based crimes without making headway on changing underlying gender norms has two likely outcomes: the message will be drowned out or co-opted.
The first concern is that the ‘message’ of women’s equality will be drowned out by the other stereotypes, social norms, and power dynamics that proscribe dominant views of gender roles, sexuality, and family life. Thus, even if more convictions and longer sentences are secured, it is unlikely that the broader message of the value of women will be communicated. This leaves the structural problem of gender-based violence untouched.
I do not want to downplay the importance, however, of securing convictions or punishments for individual victims of gender-based violence. For many, this will provide many tangible and intangible benefits, including safety while abusers are incarcerated and the incalculable value of being believed. Given the very real scarcity of societal, and especially governmental, support for victims of gender-based violence, this is no small thing. What’s more, while I caution against undertaking political projects aimed at increasing criminal legal responses to gender-based violence, I do not criticize any choices individual victims make about how to seek justice, safety, and other forms of support.
The second concern is that the ‘message’ of increased prosecutions and more severe punishments will be co-opted by the racist ideological link between criminality and blackness in the United States. The criminal legal system in the United States is an expression of American values not only in its unwillingness to respond to gender-based violence. It also expresses strong messages of another unjust status quo: the problem of anti-black racism and violence. As Steven Schwartzer has argued, “American policing and punishment express a commitment to racially derogatory, subordinating ideologies in much the same way that objectionable forms of racial discourse do.”
One serious risk of attempting to use the criminal legal system to express the value of women by increasing prosecution and severity of punishment is that those people who are already most heavily targeted by police and punishment, black men, will bear the brunt of this communication. Rather than reinforcing the counter-hegemonic message that women are equally valuable, there is a risk that these interventions in the criminal legal system will end up reinforcing the association of blackness with criminality, given the existing ideological background. As Megan Burke has demonstrated, the image of the Black rapist is still evident in many social norms and media images, and similar stereotypes abound about Indigenous men and domestic abuse.
So far, I have argued using criminal law to communicate the equal value of women may fail because the social context of sexist ideology may drown out that message and the social context of racist ideology may co-opt that message.
One may argue that, for Hampton, the expression conveyed by punishment is an intrinsic good, regardless of the way that punishment is taken up and interpreted. But Hampton did not sufficiently attend to the fact that the meaning of punishment as moral condemnation is dependent on the social contexts that give meaning to things like guilty verdicts and severity of sentences. These social meanings are already intertwined with sexist and racist stereotypes that will affect the very expression of these punishments as moral condemnations of gender-based violence in the first place.
In the political struggle to end gender-based violence, feminists should pay special attention to how the criminal justice system has been legitimized by the putative goal of protecting (white) women in the past and the present. We should therefore be extremely cautious about using this system to fight gender-based violence.
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Amelia Wirts
Dr. Wirts is an Assistant Professor of Philosophy at University of Washington, Seattle. She specializes in philosophy of law, social and political philosophy, philosophy of race, and feminism. Her current project focuses on building a non-ideal theory approach to philosophy of criminal law in the United States.
