We Need to Radically Change the Way We Think About Sexual Violence

Even if the criminal legal system was "working," the needs of sexual violence survivors would still go unmet, civil rights attorney Alexandra Brodsky said.

Photo of woman wearing white dress outside in vigil for survivors of sexual assault
Sexual Justice, out Tuesday, is a comprehensive look at the state of sexual violence and survivor justice. Gilbert Carrasquillo/Getty Images

#MeToo became a household phrase and hashtag in 2017, after the New York Times published an expose on Harvey Weinstein, setting off an avalanche of accusations. Everyone from big-time movie stars to federal judges were outed as sexual harassers, abusers, and rapists. The #MeToo call to action predates that article, though, going back to 2006 when activist Tarana Burke started the movement to encourage survivors to speak up for themselves.

It’s been 15 years since Burke’s creation of #MeToo, and almost five years since the first Weinstein accusations were reported. And despite what often felt like a seismic reckoning across industries, sexual assault survivors remain grossly disadvantaged by our justice system. Meanwhile, questions remain about what survivor justice looks like in a world that is increasingly coming to terms with the harms of policing and incarceration.

Conversations about sexual violence often lack nuance and are marked by false choices: If we abolish the police—if we imagine a future free from mass incarceration—who will arrest the rapists? Where will they go? (The answer to this one is simple: Statistically speaking, cops already don’t do much for sexual violence survivors, and are in fact some of the most likely perpetrators of intimate partner abuse themselves.)

Moving beyond a carceral framework of survivor justice requires a profound understanding that survivors are not a monolith, nor are their needs. What looks like justice to one survivor might be another’s worst nightmare. And in our conversations about sexual violence and criminal justice, we often overlook survivors’ everyday, holistic needs—being able to go to school, find and afford housing, and provide for themselves and their loved ones.

This is where Alexandra Brodsky’s groundbreaking new book comes in.

Sexual Justice is here to answer every bad faith question, to radically change the way we think about sexual violence and survivor justice by shifting that framework onto survivors themselves.

Brodsky, a civil rights attorney and an advocate for gender equality and survivors, lays out an intricate and accessible road map to better understand the needs of survivors in the context of their personal lives, our political climate, and the country’s growing awareness of the harms of policing and incarceration. She does so with singular expertise, weaving together complex legal concepts and real-world examples to create a comprehensive look at the state of sexual violence and survivor justice.

Rewire News Group chatted with Brodsky about her new book, which is scheduled to come out Tuesday, the wide-ranging impacts of sexual violence on a survivor’s life, the exceptionalism with which we treat sexual violence, and more. The interview has been edited for clarity and length.

Rewire News Group: Too often we think about sexual violence as a binary thing: It happens, you seek redress for it, and then there is an aftermath. But you were discussing things like needing to be in a separate classroom from your assailant or not being able to go into work. Can you expand on how sexual violence impacts the daily life of the person who experiences it?

Alexandra Brodsky: To me, it is so important to understanding sexual violence to continue the timeline after the moment of the assault itself. And I say that for a couple of reasons. I think that we just miss so much of the harm when we are focused on sort of the gory details of the assault and forget about the mundane impact, or comparatively mundane impact, on day-to-day life. And it’s not just then that we’re missing out on some of the harm. It’s that we’re missing out on a type of harm and so failing to understand the quality of impact on survivors. The type of impact on survivors. And then that shapes the kind of remedies that we think are necessary.

I think that for so many people, thinking of an extension on a paper as a remedy for rape would seem silly, it would seem like they have nothing to do with each other. And it’s only once you recognize how difficult it’s going to be for someone to focus on their studies the week after they’ve been sexually assaulted and the impact that doing poorly on that paper might have to their educational trajectory, to their earning power long term, their participation in society, does that make sense as a crucial intervention. And then the question, of course, is: Who can provide that kind of remedy? And we see how the criminal legal system and police are particularly ill-equipped to address many of the long-term impacts on survivors through workplace and school accommodations, through long-term care. And that forces us to expand our imaginations about what justice and support for survivors look like and who can provide it.

And I think that that sort of temporal reorientation also reminds us that survivors have futures, too.

It seems like normalizing this more holistic view on survivor justice could combat the narrative that we need police to address rape.

AB: I believe that’s right. And I would say I think that there’s two different things going on here. One is that the police and the criminal legal system fail at what they are supposed to do. And then also, even if that system was “working,” so many of survivors’ needs would still go unmet. Because I think sometimes, a sort of easy rejoinder is, “Well, what you’re saying is that we should just improve policing.” But recognizing that whatever you think that means, survivors would still need other institutional support, other community resources. To me, it’s sort of crucial to understanding how we build up infrastructure for survivors.

In the book you talk a lot about exceptionalism—how we treat sexual violence unlike any other crime. Can you expand on that a little?

AB: In the book I talk for a significant portion of it on what I call procedural exceptionalism, which is when people assume that allegations of sexual violence need to be subject to particularly onerous and exacting procedures to be vetted. So, sort of to give a really concrete example, people who think rape victims need to be cross-examined, and no one else needs to be cross-examined. That employers need to use higher standards of evidence when they’re investigating sexual harassment than if they’re investigating a worker who punched another worker in the face. I think a lot of it is rooted in misogyny. I think a lot of it is rooted in a sense that the people most likely to be raped are also the people who are most likely to lie.

And we see this through sort of a history of American law. This is not a recent phenomenon. And the law was really very explicit about it for centuries. That juries were given instructions that rape allegations were uniquely likely to be false. And the justifications that were given at the time essentially boiled down to “women lie because they’re mad men won’t call them back.” This is not subtext, this is the text.

I think that some of it is also rooted in the dominance of criminal law in our thinking about sexual violence. That because we’re so used to hearing rape and thinking about a criminal trial, it seems odd when there’s any other kind of procedure that is used, even though everyone knows, if you stop and think about it, your church is not going to put on a criminal trial. That is not going to happen.

It’s sort of a double-edged sword. Because on the one hand, we have this idea of exceptionalism that’s rooted in the idea that this is the most heinous thing you can do to someone. And then on the back end of it, it ends up doing a disservice to survivors because of the way that exceptionalism works in practice.

AB: I’m sort of two minds on this. Different harms are different from each other, period. And yet, the principle of American due process is that we don’t subject different kinds of harms, of different severity and kind and impact, to different procedures. What determines the procedure that’s used is the impact for the accused. So, when I said impact earlier, I meant for the victim.

The example in the book is the O.J. Simpson trial. So you have a criminal trial, where O.J. is tried for murder, using the same procedures that would be used if he had been accused of criminal fraud. And then you have a civil trial, where he’s subjected to different procedures, because the possible outcome for him is different. He might have to pay money at the other end. There’s no way he’s going to prison. And there, again, even though the allegation is severe, no one would say that murder is like theft—he is subject to the same procedures that would be used for a civil offense much less grave than murder.

I think that we can acknowledge that sexual violence is different from other kinds of harms in certain ways, and still use the same procedures. But I think that you are absolutely right that feminists need to be really careful with the ways that we talk about sexual violence as potentially being different. I don’t think everyone agrees that it’s different. I think sexual violence is different for some ways in people, than, we’ll say, other forms of violence. We need to be careful that the way that we talk about those harms doesn’t feed an exceptionalism that ultimately comes to bite us. I think it’s really institutions that thought they were doing right by survivors by designing different, unique procedures just used for sexual harms. And those procedures, inevitably, attracted criticism. And because they were sort of separated out from any of the other investigative works that those institutions did, it was really easy for the conservative backlash, like the DeVos regulations.

Once sexual harms were subject to unique procedures, that was fertile ground for anti-feminists to then demand that sexual harms be subject to uniquely onerous procedures. For a brief period of time, they were subject to uniquely non-adversarial procedures. Now it’s easy to flip that on its head and have these unique procedures be uniquely re-traumatizing, uniquely onerous, in a way that I just don’t think would have happened if we were talking about this in a trans-substantive way. I think that, to go to the DeVos regulations, some parts of that rule are honestly just … make zero sense. And that would have been very clear to people if we were talking about student discipline for anything other than rape.

Can you talk a little bit about how gender and marginalization impact survivor justice?

AB: It is so clear the word of women, especially women of color, is viewed as sort of inherently incredible. And sort of a mix of both assumptions: that women lie to harm men, and also that they don’t know what happened. Which are, in some ways, myths in conflict with one another. But I even felt this way with the Blasey Ford allegation against Justice Kavanaugh, where somehow the Republican line ended up being Ed Whelan’s tweet thread that she had just gotten wrong who’d raped her. That it must have been this other guy. Which is just such an absurd story that goes against everything we know, both about those particular people and the details that survivors do remember. What I will say is that I think enough people have figured out now that you are not allowed to say women are liars. And they use the rhetoric of due process often, to give it sort of a fresh veneer.

I think that they sort of know at this point that maybe you’re not allowed to say, “I think that women are overly sensitive and overreact and the guy’s just trying to tell them a compliment.” And instead they say, “This is a grave violation of due process.” And sort of digging into what they mean about that, what they’re really saying is, “I think that this conduct should be permissible. You should be allowed to do this.” And that’s not about due process. That’s about substance. If we’re going to have that conversation, we have to have it outright.