Social justice and civil rights groups have long taken the lead in shaping society’s visions and goals in the pursuit of justice for all. Yet, with rare exceptions, these same groups have been oblivious to women’s most urgent justice needs.
There’s a huge gendered blind spot between the traditional social justice agendas on the one side and women’s justice needs on the other. Ignoring this gap makes it impossible to realize a balanced system of justice for all. Lost, too, in that unexplored terrain, is the potential for uncovering the many common roots and solutions to some of the most stubborn justice system problems that have stymied reformers for ages.
It’s been too easy for social justice and civil rights groups to avoid this gap by arguing that women are covered by the same justice system rights as men, so what’s the fuss? Indeed, it’s true, women have the same right to remain silent, the same rights to be free of illegal search and seizure, the same rights to a defense attorney when charged with crimes, etc. But this refrain only serves to further obscure and deny women’s neglected plight in the justice system.
Women don’t come to the justice system primarily as suspects and defendants. Women come to the justice system most frequently, and most urgently, as victims of gender based violence. And in that critical realm, women have virtually no rights to justice at all. Instead, biased law enforcement and justice officials are both free and predisposed to deny women access to justice with impunity. (See: Eight Key Legal Cases, http://www.justicewomen.com/cj_dutytovictims.html)
Social justice and civil rights groups should be our natural and powerful allies in the struggle for securing women’s rights to justice. It’s imperative that women’s justice needs share in the prominent role and resources these groups have claimed as definers of progressive justice goals. And share, too, in the legal clout and legal talent pool these groups have consolidated under the banners of justice for all.
In turn, social justice groups and civil rights groups need to understand that as long as their agendas continue to ignore half the population’s most pressing justice needs, their views and strategies remain so inherently one sided and flawed as to inevitably render their remedies defective, too.
So what’s wrong and how can we fix it?
Five Examples of the Gendered Blind Spot in Social Justice and Civil Rights Groups Agendas
Berkeley Cop Watch
Formed in 1990, Berkeley Cop Watch is a grassroots group that has served as a model for numerous similar ‘cop watch’ groups around the country. The group’s stated aim is to watchdog police abuses and push for police accountability. But examination of any of the group’s materials or activities shows they have only been concerned with policing abuses related to over-aggressive policing, abuses which primarily affect males. They have never taken up the equally abusive denials of police services which pose such profound and discriminatory justice problems for women.
Cop Watch’s principal education card clearly illustrates the blind spot. The card is divided into three parts; “If Police Arrest You”, “If Police Stop You”, and when, “Police Stop Anyone”. (See the card, “The CopWatch Pocketguide, Know Your Rights”, here http://www.berkeleycopwatch.org/resources/pocketguide05.pdf)
There’s not a word anywhere on the card about your rights, or what to do, when police refuse to act when you urgently need them to act. Nor is there any recognition in their materials that police systematic denial of protection to women is even a form of police abuse. The group’s disregard for this form of abuse is so blinded that, Berkeley Cop Watch, and other cop watch groups, frequently advise the public to avoid using police, a bit of advice that is outrageously reckless and oppressive to victims of violence against women.
Clearly, if Berkeley Cop Watch had any regard for the police abuses that so frequently affect women, their pocket guide (and other materials) would have information on what to do, “When Police Refuse to Act”.
National Lawyers Guild
A primary focus of the National Lawyers Guild mission is protecting people’s rights in the criminal justice system. The Guild’s online guide to law enforcement rights is titled, You Have the Right to Remain Silent, A Know Your Rights Guide for Law Enforcement Encounters. Published in 2010, this booklet, like the Cop Watch guides, provides no discussion of a person’s rights, or what to do, when law enforcement refuses to act or protect.
The National Association for the Advancement of Colored People (NAACP)
Like other social justice and civil rights groups, the NAACP criminal justice activities are primarily concerned with over-aggressive law enforcement abuses; racial profiling, excessive use of force, disparate sentencings, high incarceration rates, etc. But, significantly, unlike most other social justice organizations, the NAACP discussion of these issues is set within a framework and a call for “effective law enforcement”, a critical element of which, the organization states, is “elevating the voices of crime victims”. Although NAACP criminal justice materials make no specific reference to violence against women or to the specific justice issues that disproportionately affect women as a class, the call for “effective law enforcement” and for “elevating the voices of crime victims” sets the stage and opens the door to inclusion of these issues. (See http://www.naacp.org/pages/criminal-justice-issues)
In its 2010 Criminal Justice Toolkit, the NAACP expands on the importance and meaning of “elevating crime victims’ voices”. The toolkit also explains the NAACP’s rationale behind their sensitivity to the injustices on the victim side of the issues. At the same time that Afro-Americans in the U.S. are disproportionately incarcerated, they are also disproportionately victims of crime, and, as such, they are acutely aware of the oppressive effects of a lack of effective law enforcement response. From there, it isn’t that much of a leap to insert the particular needs of women for that same effective law enforcement response.
The American Civil Liberties Union (ACLU)
One of America’s premier civil rights organization, the ACLU does recognize that women’s rights in the criminal justice system need to be protected. But the ACLU’s view of women’s rights in the criminal justice system is severely constricted by viewing these rights through the narrowest male lens. As of January 2011, all issues and discussion on the ACLU’s web page titled “Women in the Criminal Justice System”, deal with the rights of women behind bars. See http://www.aclu.org/women-and-criminal-justice-system.
In other words, when women get ensnared in the kinds of problems most frequently encountered by men, then the ACLU can see this as a threat to women’s freedoms. But on both the national and local levels, the ACLU remains overall inattentive to the most frequent and principal ways in which the criminal justice system threatens women’s liberties, i.e., the systematic denial of protection and justice for victims of violence against women.
There is, however, a hint that this constricted view might be opening to the possibility of change. The ACLU has submitted key briefs in the Jessica Gonzales international human rights case, arguing on the premises that a) violence against women is a human rights violation, and b) that states have an obligation to enforce violence against women laws. And more recently, the ACLU has served as counsel in military rape victims’ lawsuit against the Pentagon. It should be noted however, that this lawsuit is not targeting the Pentagon’s failure to enforce sexual assault law, but rather its failure to recognize the rapes and provide treatment for the victims’ post traumatic stress disorders.
The American Bar Association (ABA)
Although not strictly an advocacy group, the ABA is, nonetheless, a national association of advocates, and a very powerful one at that. With its motto, Defending Liberty, Pursuing Justice, one would hope the organization would have a laser focus on the widespread denial of liberty and justice to women. The ABA does have a commission dedicated to domestic violence. It has produced a significant body of work cataloguing state laws, and has put forth meaningful resolutions and guides, most of which deal with civil issues. But on the most critical issues of women’s rights to justice and equal protection in the criminal justice system, the American Bar Association has, to date, been mute.
A Look into the Abyss
The left has always tended to step awkwardly over and around women’s rights issues, whether in labor movements, immigrant rights groups, anti-racism, or anti-poverty groups. Women’s rights issues can cut right down the middle of a group’s hard won solidarity on other issues, polarizing and bisecting the room, and threatening the unity around the “greater cause”. Again, and again, the women’s issues get sacrificed to “the cause”. And the women who raise these issues are too often silenced under the accusation of being divisive. But nowhere has this dynamic been so prevailing as in movements for justice reform.
The unique void between the justice agendas of social justice groups and women’s rights groups can begin to be understood by looking at the different kinds of criminal justice system abuses experienced primarily by males versus those experienced primarily by females. (See the table four paragraphs down.) Clearly, the two sets of abuses, - over-aggressive law enforcement on the one side, withholding of law enforcement on the other, - are, in fact, opposites in many respects, making it all too easy to conclude, incorrectly, that the solutions, too, must be competing and opposites.
Given that social justice and civil rights groups have been historically male dominated, it’s not surprising that the legal rights and remedies they’ve defended and promoted correspond almost exclusively to justice system abuses experienced primarily by men. What is surprising, and of utmost concern, is that in the year 2011, these groups have yet to recognize that half the population is still standing outside the gates of justice without any rights or remedies for their most urgent justice needs.
Exacerbating the situation further is that, over time, this one sided focus of social justice groups has fostered stubborn cultures within the groups that tend to view law enforcement overall as inherently repressive, and best to be avoided.
From that mindset, even discussion of the remedies needed to solve women’s justice problems is often ruled out of hand, and viewed as a threat. Furthermore, it’s a mindset that has unwittingly set these groups at odds with their own core beliefs that democratic societies must be governed by the rule of law.
Examples of Criminal Justice System Abuses
Abuses Experienced Primarily by Men
Abuses Experienced Primarily by Women
||Police Refusals to Enforce
|Over-aggressive and Authoritarian Attitudes
||Dismissive attitudes, mocking indifference, and Disregard
|Illegal Searches and Seizures, Planting and Falsifying Evidence
Refusals to Collect Evidence and Witness Statements
Malicious Selective Prosecution
(e.g., racial profiling, crack vs. cocaine prosecutions, gang classifications, etc.)
|Malicious Selective Non-Prosecution
(e.g., systematic failures to prosecute gender based violence)
|Withholding Exculpatory Evidence Soborning Purjury
||Withholding Probative Evidence Dissuading Witnesses
|Cruel and Unusual Punishment
||Give-away Dismissals and Plea Bargaining, Impunity
Lost and Found in the Gendered Blind Spot
The gendered blind spot between social justice agendas and women’s justice needs obscures key concepts essential for creating a justice system that truly functions for all. Here are just some of the more obvious:
- Democratic societies under the rule of law are impossible without effective enforcement of the laws. Law enforcement and criminal justice systems are not inherently repressive. They can just as rationally be understood as inherently liberating and anti-oppressive forces. Prompting the latter character to prevail at the very least requires a first step of recognizing the legitimacy of law enforcement systems, an understanding that is particularly visible from women’s point of view.
- Despite being apparent opposites, justice system abuses on both sides stem from many of the same root causes, and share many of the same solutions. The unfettered discretion of police and prosecutors, the male control of law enforcement structures, the hyper-male culture of law enforcement, for example, are underlying generators of both sets of abuses. But, again, without putting women’s perspectives on the agendas, these cardinal problems are unlikely to be explored or remedied.
- Systematic and discriminatory denial of justice is every bit as dangerous and oppressive to women as a class, as is over aggressive enforcement to racial and ethnic minorities, and every bit as damaging to society.
- The injustices experienced primarily by men at least have a corresponding body of law designed specifically to remedy those abuses. Many of those remedies, in fact, are enshrined in national constitutions. But the injustices experienced primarily by women have virtually no law with which to remedy the abuses. (See Eight Key Legal Cases, http://www.justicewomen.com/cj_dutytovictims.html)
- Given the absence of legal remedies for justice system abuses experienced by women, securing women’s rights to justice should be paramount on any social justice or civil rights agenda.
NOTE: Victims’ Rights Law does not establish rights to protection and justice. People often point to the body of victims’ rights law passed in the last few decades to argue that women do have legal rights to protection and justice. This is completely mistaken for three main reasons.
One, victims’ rights law does not create any rights to protection and justice. Even the most comprehensive set of victims’ rights, are limited primarily to establishing victims rights to be informed during the justice process, i.e., to be informed of court dates, proceedings, release dates, plea deals, and such, most of which information is already available on the public record.
Second, as paltry and patronizing as these victims’ rights laws are, they are not even actionable. This means that when justice officials violate these laws, the victim cannot hold the officials accountable in a court of law. As was clearly nailed down in the Gonzales Supreme Court decision (2005), law enforcement discretionary powers trump state law.
Third, victims’ rights law doesn’t in any way remedy, or even address, the discriminatory and disproportionate denial of access to justice women receive at the hands of law enforcement and justice system officials.
Spotlighting Common Root Causes, Common Solutions
Engaging social justice and civil rights groups in the struggle for women’s justice rights is not only crucial, it has the huge potential of magnifying all of our efforts in the pursuit of justice for all. Granted, opening up their one sided view of criminal justice rights isn’t going to be easy.
Nonetheless, there are significant meeting points to build on. To start with, there is the clear moral imperative that social justice and civil rights groups can’t continue to march under banners of ‘justice for all’ while ignoring justice for half the human population. In pressing these groups for more equitable and inclusive justice system agendas, it is also greatly to our advantage that they are as highly motivated and willing to overhaul the justice system as we are.
But likely to be even more persuasive is the fact that so many solutions to these groups’ own most frustrated and long thwarted goals are to be found by looking at the justice system from a women’s rights point of view. Fortunately, many of the facts are in, and much of rest is just plain obvious.
Here are just a couple examples:
The problems of police brutality and police misconduct cannot be solved without targeting the entrenched male domination of law enforcement hierarchies. It’s already been proven. Female officers have dramatically lower rates of police brutality and misconduct than male officers. This distinction surfaces even before women have been integrated into law enforcement in sufficient numbers and sufficient rank to change overall law enforcement culture.
If social justice and civil rights groups truly want to make gains in ending police brutality and police misconduct, and they do, they have to be enticed by the proven potential of women to break up the exclusive patriarchal, hyper-male, hyper-aggressive, stronghold of law enforcement hierarchies that sit at the root of the problem.
Once convinced, these groups should be doing everything in their power to push for women’s advancement in policing. Yet, to date, it’s hard to know if the thought has even crossed their minds.
Selective prosecution, selective non-prosecution, over charging, under charging, over enforcement, under-enforcement, over punishment, impunity; all of these stem from the same underlying problem of unchecked police and prosecutorial discretion. Establishing restrictions on law enforcement discretionary powers is going to be an extremely difficult task, especially given how thoroughly these powers are built into the very foundations of most every society’s legal systems.
It is severely dysfunctional for a society to take great pains in prescribing detailed vetting and voting on the laws we agree to live by, and then to give absolute power to law enforcement to arbitrarily pick and choose which laws to enforce and which to ignore. It’s a patent absurdity which inevitably results in terrible and glaring injustices.
Legal reformers have been looking long and hard, and quite unsuccessfully, for ways to provide checks on these law enforcement powers. But their focus has, again, been almost exclusively on strengthening defense tactics and rights, an off-center focus resulting from their one-sided fixation on the abuses experienced primarily by men, a blinded focus that can hardly lead to comprehensive solutions.
For example, the gendered blind spot has led social justice and civil rights groups to virtually ignore, for example, the two recent Supreme Court decisions of DeShaney (1989) and Gonzales (2005). Both these decisions delivered devastating blows to women’s justice rights, but, at the same time, they also solidified law enforcement discretionary powers in ways that will be doubly difficult to undo from any perspective. It’s just one example of how the invisibility and ghetto-izing of women’s justice concerns can be used by the system to undermine the justice rights of all.
Here’s another kind of example of how the tyranny of unchecked law enforcement discretionary powers leads to an absurdly warped proportioning of justice for all, an example, too, of why the problem must be attacked at its core.
|In 2008, in Sonoma County, CA:
|Arrests for Misdemeanor Marijuana, (less than an ounce)
|Forcible Rapes Reported to Police
|Rape Reports Sent to DA for Review
|Forcible Rape Convictions
Clearly, attacking this problem as a defense issue may protect some of the marijuana defendants from conviction, but it won’t make much of a dent in this ridiculous squandering of law enforcement resources on the arrests, and it would do nothing to improve the justice record on rape.
On the other hand, finding a way to put checks on police and prosecutorial discretion over which laws to prioritize and which to minimize will get at the heart of the justice problem overall.
Given the enormity of the gendered blind spot, just shining a light on it should begin to make a difference. Getting the ball rolling may be as simple as reaching out to social justice and civil rights groups and laying out the problem for all to see.