Why I’m skeptical of efforts to criminalize the sabotage of birth control

***UPDATED to fix Tressie’s twitter handle. Cuz that was embarrassing.***

Men sabotaging women’s birth control is A Thing.
It’s a form of abuse, an act of taking control over her own body away from a woman. Women suffering from domestic violence are often additionally victim to this as well as other forms of abuse, by men trying to keep them from leaving the relationship (which for obvious reasons is much harder when you’re pregnant or have children in the house), or sometimes just because it’s another form of control and DV is all about control. It is obvious therefore that sabotaging women’s birth control and other forms of reproductive coercion need to end, victims of this need to be able to seek justice, and perpetrators need to be made accountable.
Which of course means that now that a Canadian case has made a lot of people notice that this is A Thing, they want to criminalize it, based on the argument that the sexual assault laws in the U.S. would never suffice by themselves to persecute abusers for it*. Sounds sensible: if you think that the criminal justice system works even remotely well, then it makes sense to think that if someone commits an act of violence, they need to be sent throught the CJS for it. But this really does require the assumption that the U.S. legal system is just (or at least “close enough” to just to make it work more often than not)and therefore that criminalization will work as intended.

I’m skeptical. I’m skeptical, because when I read this twitter exchange between Lauren Chief Elk (‏@ChiefElk) and Brienne of Snarth (@femme_esq), I couldn’t help but acknowledge the truth of many of the points, if not necessarily their immediate applicability to the wider U.S. culture**. I’m skeptical, because I tend to come at these things from a harm-reduction-based perspective, and I’m not convinced that this will actually reduce rather than increase harm. I’m skeptical, because cultural myths play a huge role in the ways laws actually end up being applied.
For example, the Stand Your Ground laws don’t actually allow victims greater leeway in self-defense (see: Marissa Alexander***) but rather allow already privileged people to get away with violence even more. This is because cultural myths are such that black men and women are always seen as the danger, and white men and women always as the defenders of civilization. And how does this work with birth control sabotage? Our cultural myths claim that women are baby-crazy, and men don’t actually want kids; that women are more likely to be ok with an unplanned pregnancy than men (there’s how many movies with that plot? The one where an uncomplicated het-relationship gets derailed by pregnancy that switches the woman into “settling&nesting” mode while giving the guy a midlife crisis?); that women are more invested in committed relationships than men (see: ball-and-chain), and thus more likely to use desperate measures to prevent a breakup; etc. Hell, google “tricking into pregnancy” and see how that works out. As Brienne points out in the twitter dialogue, the cultural narrative is of a woman trapping a man rather than vice versa. Even the Daily Beast article linked at the beginning of this essay acknowledges this with a link to an article discussing NBA orientation for rookie players, in which the following quote appears:

They wanted us to see the dangers out there. They warned us about groupies poking holes in condoms, having hidden cameras and stuff like that. The temptations are hard to turn down, but if you don’t, you are subject to big problems.

And remember, we live in a society in which there are people convinced that women stealing sperm out of discarded condoms is some sort of epidemic (google “spermjacking” if you really want to know more about this; I wouldn’t recommend it tho).
So what I’m saying is this: when you’re operating within an extremely unjust legal system, you have to be exceedingly careful how you use it; in this case, the question is: how likely is it that criminalizing BC sabotage will be effectively used against actual abusers, rather than against women by e.g. dudes not wanting to pay child support?
BC sabotage is going to be a situation of he-said-she-said almost always, and “he said” will be always given more weight than “she said”, especially when other oppressions like race and class also work against the woman. I can imagine this even leading to greater reproductive coercion, if a guy who doesn’t want a kid threatens the pregnant woman to either get an abortion or be accused of spermjacking or some shit like that. I can also imagine that many women won’t report BC sabotage: consider the stigma BC has in this country (Sandra Fluke anyone? And she was a very privileged woman); consider the cultural myths about who sabotages BC; consider the “bitches be lyin'” trope. Basically, all the reasons ever mentioned in #IDidNotReport will figure in here as well, and we might well be increasing the potential for legal harassment of victims of DV, by giving their abusers another tool to subvert for their own needs.

Mind you, harm reduction is not the sole reason to criminalize something. The main other uses of criminalization in justice are punishment, normalization, process, and deterrence.
I reject the idea of punishment as a goal of justice, in general. Punishment of an offender as a goal of criminalization/incarceration (rather than a means towards another goal) relies on the notion that responsibility lies solely and entirely with the offender; it requires belief in a self-causing will, in the notion that an action is entirely and solely caused by the offender’s creation of a desire and opportunity to act as they did. I don’t accept this belief, because it goes against the evidence that shows us that the world outside our heads shapes our desires, priorities, and opportunities. Punishment for the offender and only for the offender (because how to you incarcerate social structures?) is an individualist erasure of the structural causes of violence.
So while accountability for the harm caused by an action is a sensible part of justice, punishment for its own sake is not. Making someone “pay the price” for a crime to society or to the victims has to actually be of value to society or the victims, and locking someone up does not, per-se, produce any value to society/victims. It can only do so as a means to a goal. Which brings us to the other aspects.
Despite the saying “morality cannot be legislated”, a law actually is a normative statement. And the fact that plenty of people can’t tell the difference between legal and moral (nor the difference between illegal and immoral)seems to indicate that normalization happens, if not immediately than into the next generation at least. Basically, if you allow or forbid something and the world doesn’t come crashing down (or significantly inconvenience anyone with social visilibity), people get used to it and start thinking of this as the new normal. So folks saying that it would make a statement that society doesn’t condone reproductive coercion if it were criminalized do have a point. But as a main reason to criminalize it, it seems not enough, given that it would also be a weak normative statement. Not because a law is a weak normative statement per-se, but because laws that go against strongly entrenched cultural myths have their normative function subverted. E.g. rape being illegal does mean the cultural idea is that rape is bad, but it’s entirely abstract; not only do some actual rapes get defined out of the rape category, the culture also creates a lot of exceptions (the most jarring example is prison-rape: people generally don’t deny it’s rape, but they treat it like a joke or a deserved punishment). I suspect the same will happen with these situations: even if we’d achieve a normalization of the belief that reproductive sabotage is a thing and a bad thing, the cultural mythology around it will subvert it so that real instances will be treated as not-it, or as exceptions where it’s somehow ok.
Process means simply giving someone a clear, pre-set way of dealing with something. Now, I don’t think any engagement with the American CJS is easily understandable, simple, etc. but having a set process and a set of legal tools to deal with something is usually preferable to no procedure at all. This is likely the strongest case for criminalization, because it’s useful and helpful to be able to take out restraining orders, have a concrete, codified thing to accuse your abuser of, and have other rules you can lean on when it’s hard to try to think your way out of a situation. But acknowledging this absolutely requires remembering that this will be useful primarily to those with educational and class**** privilege; who don’t make up the majority of DV victims.
Deterrence is/can be an acknowledgement of the way social structures shape choices. To deter means to change the environment in which a choice is made, and introduce a desire (the desire to avoid being held accountable) to hopefully outcompete the desire that would be satisfied by the criminal action. These changes can lead to reductions in the occurrence of a harmful act, and can therefore be actually useful. As such, deterrence is not inherently flawed the way punishment is; but it needs to actually accomplish the environmental and internal changes, or else it’s bullshit. A law as deterrent tends to only work if the likelihood of getting caught & convicted is high, or at least thought of as high. Laws that have low rates of perpetrators getting caught and getting convicted make lousy deterrents: if you get away with it sometimes, you learn that you can get away with it always, even if it’s not true. Works like that for texting-and-driving, for underage drinking, for pot-smoking-while-white, and because of rape culture it also works like that on rape. My suspicion is that given the difficulty to prove sabotage and the power-disparity in literal he-said-she-said situations, arrest and conviction rates would be low. So, not an effective deterrent in the long run.

So to sum up: there are positive things that criminalization could possibly accomplish, but these effects seem to be overall fairly small and doubtful given the current cultural narratives. And the way selective application of these protective laws protects aggressors more than victims, there are potentially many negative consequences to victims. The potential for abuse, for being directed against victims of domestic violence, and for even increasing some forms of reproductive coercion is pretty big given the current social narratives. I worry that the negative effects far outweigh any positive ones.

Not that I’m saying we shouldn’t do anything about this problem, but I’m more and more thinking that putting the tools for defense in victims’ hands rather than in a severely broken, anti-woman, anti-poor, anti-PoC criminal justice system is the better approach at harm-reduction and empowerment at this time. So, some suggestions along those lines, to help free women from reproductive coercion without risking anti-woman side effects:

1)increase free and gatekeeper-free access to as many form of birth control (both the contraceptive and post-conceptive kinds): controlling women’s reproduction happens often with the cooperation of laws on birth control which make access complicated, time intensive, expensive etc, thus preventing women in DV situation from discreetly controlling their reproduction and from choosing options that would be less manipulable by a violent and controlling partner. Give women more options and access for BC, and in many cases you take away the means by which an abuser can coerce their reproduction.

2)Destroy the cultural myths that harm victims of reproductive coercion: these would the the ideas that consent to sex is consent to pregnancy; that reproductive coercion is something women do, rather than something abusive men do; etc.

3)Provide better safety nets and community support for single pregnant women and single women with children. When pregnancy and children no longer function as traps keeping the women from leaving (e.g. because there’s no women’s shelter that will accept all her kids), the utility of reproductive sabotage as insurance against leaving will diminish, and with it the value of this action to abusers.

None of those will stop all or even many cases of reproductive sabotage immediately; but neither would criminalization. I just think that the suggestions above would also have fewer negative side effects on already victimized women.

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*it’s complicated, but basically Canada has some stricter ideas about what is or isn’t legally consent than the U.S. does. The Canadian case that kicked off this interest in criminalizing reproductive coercion was one in which the sabotage was treated as aggravated sexual assault because even though the woman consented to sex, she didn’t consent to unprotected sex. Basically, at least in Nova Scotia, it’s (as the case stands now) legally true that consent to sex is not consent to pregnancy. As this legal article explains, that’s not true in the U.S. because of that nasty thing called “generalized consent”, plus legal-structural shit that went over my head because IANAL.

**the conversation includes the following tweets:

[Lauren Chief Elk @ChiefElk
Decolonizing Anti-Rape Law and Strategizing Accountability in Native American Communities via @andrea366 http://communityaccountability.files.wordpress.com/2012/06/decolonizing-antirape-law.pdf ]
[Lauren Chief Elk @ChiefElk
Decolonizing Rape Law: A Native Feminist Synthesis of Safety and Sovereignty via @sarahdeer http://turtletalk.files.wordpress.com/2009/10/deer-decolonizing-rape-law.pdf ]
The papers deal with the question of sexual assaults and tribal courts. They’re amazing and I find these immensely interesting and good material for thinking about anarchist communities, because not being able to deal with sexual violence is a major flaw of every idea (and praxis) of anarchist community I’ve ever encountered. But most women in the U.S. don’t at the moment live in the kinds of communities that would allow for analogues to tribal court justice.

***relevant and timely, on Friday there will be a discussion on Marissa Alexander and how DV laws backfire on minority women:

[Lauren Chief Elk ‏@ChiefElk
So on Friday we’re going to talk about shifting anti-violence, criminalization of DV, & Marissa Alexander w/#FreeMarissa. Get ready to join.]

****class privilege is very relevant, even if you “fake” it. In this essay on poor people and expensive stuff, Tressie McMillan Cottom (@tressiemcphd) recounts the story of her mother helping people in the community with bureaucracy; and how her mother had an expensive outfit to do it which seemed to gain her “respectability” from the office folks, at least enough to make it possible to get stuff done where the people her mom was helping couldn’t.

My conversation with a female rape apologist

**TW for minimizing female-on-male rape, description of non-consent by perpetrator, and denial of realities of rape**

I didn’t think I’d ever end up having to have this conversation with anyone on my FB. But it happened. not only was the OP already not a good thing, implying that women sexually forcing themselves on men isn’t rape because erect and ejaculating penises are involved; a few comments down a woman joins with a comment describing a situation in which she proceeded to sexually touch a man despite lack of positive signals and some negative non-verbal signals, using the word rape in scarequotes. It didn’t get any better from there:
screenshot of a facebook conversation (transcript at bottom of post)
I should have left that conversation at that point (well, I should have left when I said I would). I didn’t, and it went on and got worse; at one point, she decided to interpret my second-to-last comment visible above as me asking a rape victim out of the blue whether they orgasmed during their rape, and tried to accuse me of being turned on by other people’s rapes (and when I corrected the admittedly badly phrased comment to say I meant I had listened to survivors talk about this, she accused me of lying). I did finally leave (and I’m sure the thread is still going on) after being told “Go find a rape victim to drill. Pun intended”.

I don’t know why I’m posting this, other than I guess to document this surreal experience. Because seriously, WTF.

– – – – – – – – – –
Transcript:

Person1: I still suffer a considerable amount of cognitive dissonance over the use of the term “rape” for the act of a woman forcing a grown man to have sex with her — with him becoming aroused, having intercourse and reaching orgasm.
To most young men, tales of the situation probably provoke laughter more than empathy. I have to wonder if that doesn’t cheapen the word.
That it happens, and that the men it happens to are emotionally affected, I have few doubts. But we definitely need some different terminology.

Person2: That is part of the difficulty in men reporting rape. No one believes them.

Person2: I don’t know of a better word for it. Sex without consent.

Jade Hawk: sex without consent is rape. doesn’t matter whether it’s men raping women or women raping men, it’s still rape. it’s the violation of bodily autonomy. Why should we not use the correct term for it?

Jade Hawk: oh and btw, the thing about arousal and orgasms is a common denialist trope targeted at women; because sometimes women, when they’re raped, have orgasms. That doesn’t make it not rape.
Same thing applies to men: eliciting a physical reaction from your nether parts does not constitute consent.

Person3: Yeah, I agree that it’s still rape. It is basically the same violation, even if viewed differently by most men.

Person4: I “raped” my ex at the time. We had just broken up and I was devastated. We rested in bed together after a long fight, sort of cuddling but very cautiously so. I started touching his hair and skin. Trying to be romantic, trying to.show love and change the course. He didn’t move or respond at all.
I somehow found myself giving him.head. he told me I shouldn’t and didn’t respond much other then a moan… half pleasure, half. “Stop it.” He came really hard and curled up in a ball. Moments later he cuddled me tighter and asked why he can’t ever say no to me. The power I felt was very strong and feminine, and very erotic. We stayed apart for about another year, occasionally sleeping together. I brought it up a few months later unsure if I.should feel guilty. He said at the time it felt good but.he didn’t want it, but at present it didn’t bother him. The conversation served.as a segway for some sex and roleplay.
It was wrong of me to ignore his signs even if he didn’t explicitly day no, but we’re back together now and to this day his oral rape is a fond and sexy memory for both of us. It’s the only.time I’ve done that.

Person4:file that more under poor decision making.than.actual rape.. that’s what.he meant when he said I shouldn’t.
And I.don’t.know about ant of you but I have been made very sexually uncomfortable by men and women alike. I.can’t imagine anyone, male or female being relaxed enough to orgasm during a sexual assault. Ever.

Jade Hawk: your failure to imagine something doesn’t constitute a fact or even a valid argument

Person4: I didn’t say it did. I’m speaking personally. Jeez.

Jade Hawk no, “i can’t imagine anyone” is not speaking personally, it’s projecting.
I’m done with this. rape apologia is more than I can deal with today

Person4: No. Its saying.that infant imagine something.

Person4: I can’t

Person4: And who are you to say I condone or sympathize with rape or rapiats?
Because I’m not so much of an animal that even if I’m emotionally distraught if someone touches my.junk I cant help but be turned on? Earth is not some hentai film. We are not ruled by sexual urges.

Person4: We don’t.scream in pleasure during rape. We.scream for.help. now.go.watch.la blue.girl or.some.shit. crazy woman.

Jade Hawk: victims of rape who experience involuntary orgasms are animals ruled by their sexual urges?
“yeah, you’re totes not a rape apologist. and ableist, to boot

Person4: There is no such thing.as involuntary orgasm. Orgasms are a result.of.sexual pleasure.

Person4: She needs to.enjoy.it.to.come. that simple. If it were that easy to.orgasm then.women.wouldn’t complain that they can’t.relax enough in bed to enjoy.sex.

Jade Hawk: ypou’re a rape apologist and science denialist: http://www.sciencedirect.com/science/article/pii/S1353113103001536

Person4: Jade implying a rape victim enjoys her rape enough to.orgasm is fucking offensive as hell.

Person4: Yup
And.you’re a cunt. There. All your feminist dreams about me.have.come.true.
Now.why don’t.you.go.ask.a.rape.victim if.she.came or not. Insensitive Fuck. Shit .

Jade Hawk I have that’s how I know that this happens. Denialist asshole

Person4: Wow. That’s really insensitive. And your link directed me to a page about pesticides…

Jade Hawk you’re right. me listening to rape victims is super insensitive. [/sarc]
also, if a link to sciencedirect gives you a page on pesitcides, you have a virus problem

A rape culture link roundup

Despite evidence for rape, police forces raped teen to take back her accusation; her rapists then goes on to rape other women: Police allow serial rapist to continue predating after charging teen for falsely reporting rape

Teen who was impregnated during rape is being slutshamed by her neighbors: Indiana Town Shames Rape Victim, Speculates About Her ‘Promiscuous Behavior’

A victim of rape recounts her attempts of dealing with the trauma,and how she was doubted by both counselors and doctors and ended up being re-victimized over and over by her university: An Account Of Sexual Assault At Amherst College

Female workers in South Korea exhausted by constant vigilance against sexual aggression and harassment: Sexual harassment in Korea: 24 hours on constant lookout tire women

bonus:
Allen West and Michael Savage have decided that sexual assault in the military isn’t actually a problem because of redefinitions of “sexual assault” to include invitations for beer; and anyway, these women are probably just making it up anyway. As far as West and Savage are concerned, this is just an attempt by the “Khmer Rouge Feminists” to “take over the military” in a “coup”: Fox’s Allen West Uses Military Sexual Assault Epidemic To Attack Democrats And Decry Women In Combat Units

“Interpol seeks to apprehend man accused of rape”

sounds unlikely?

That’s because it fucking is. In the most egregious case of “we’re doing it for the wimminz!” since the invasion of Afghanistan, the USA is seeking to eliminate political enemies by hijacking a feminist issue, thus actually doing great damage to it. Already the misogynist left is all over the women, claiming that they’re CIA spies who “tricked” Assange and that the accusations are therefore false.
Because women do that, and these particular ones were “radical feminists”, and wrote about how to get back at ex-boyfriends, and all sorts of things that somehow make it completely impossible that a risk-addict and someone who defies people and breaks social rules pretty much for a living could possibly actually have committed what he’s accused of.
Because of all the likely ways a CIA operative could have “trapped” a target, an accusation that under other circumstances wouldn’t have gotten him to trial in an American court, or even arrested (and in many other countries, as well) was, like, the best they could do? Polanski didn’t get arrested in forever for what was undeniably and invariably a rape, of multiple kinds (i.e. both a statutory rape for the age of his victim, and “rape-rape” for the fact that she said “no” and he ignored it), so the CIA decided to go with an even less likely charge, i.e. that of refusing to stop after the woman changed her mind?
In most cases, that wouldn’t even have been considered rape by anybody. In fact, I’m mildly curious about how the Right will react to this, since acknowledging that what Assange was accused of would, on the one hand, fit into the “Assange is evil” narrative; on the other, it would require admitting that “sluts” can be raped, too, and that consent to sex can be withdrawn at any time (instead of just being buyer’s remorse).

Don’t get me wrong. I’m not precluding that Assange is guilty; but I don’t find it impossible that he could be guilty, especially since none of the reasons why he supposedly isn’t are anything other than the standard slut-shaming themes. I’m also more than a little pissed off that a feminist cause (getting the world to take rape seriously, even when perpetrated by famous people doing important things) is being so cynically abused for political reasons. Because let’s face it. He didn’t get arrested for sexual assault; interpol didn’t look for him for sexual assault. We feminists WISH the world would take the violation of women this seriously.
And just like with the “we’re liberating Afghanistan’s women!!” narrative, it will become impossible to disentangle the two, thus making anyone who is against the political imprisonment of Assange into a “rape-defender”, shutting down any reasonable discussion on the point.

The whole thing just fucking stinks.
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UPDATE: I just noticed Amy Goodman had an excellent interview with Glenn Greenwald on this issue, so I’m linking to it for clarification purposes

Femininity links and thoughts

Typology of Apology — depressingly accurate description of the different types of rape apology. but we don’t live in a rape culture, no sir [/sarcasm]

feminism is a lie of the devil — pretty much every article in there is an example of “that’s a feature, not a bug”: feminism is making women divorce men who want them to go back to the kitchen! feminism will lead to communism! (not actually true for any real definition of “communism”, but certainly for the wingnut definition, and certainly some Marxist analysis of women’s oppression is quite accurate)

feministe on reporting about O’Donnell’s hypocrisy — and this is a good explanation of how NOT to write about conservative women. Because really, the sort of sexism used against O’Donnell, and Paling, and Coulter doesn’t really help the feminist cause, and just promotes the really damaging trope that only good women deserve to be protected. I.E. this is just a liberal version of the “innocent vs guilty victim” bullshit. And it’s just all sorts of not helpful to be committing hypocrisy while writing about someone else being hypocritical.

The Madonna/Whore Dichotomy and domestic violence

The phenomenon of victim-blaming in cases of rape is pretty well known, but apparently the same thing happens in cases of domestic violence:
part 1, part2.

The difference between the two videos is fucking huge. People immediately help both the white and the black woman in the first video. It’s especially striking that the black woman is helped by two women, who aggressively go against a Big Black Dude who looks like he could knock them across the room, too (and has clearly no compunctions in doing so, judging from his girlfriend’s face). This makes the excuses from the 2nd video look pretty unconvincing. Alternatively, it can be seen as the man being judged by the appearance of the woman he’s with, i.e. a man with a “slut” at his side is judged more likely to pull a weapon than a man with a “nice woman”.
Also striking is that in the 2nd video, you can clearly see the blame shifting, when a dude at a neighboring table says that “they” are making a scene and embarrassing themselves “as a couple”: the situation is now both the man’s and the woman’s fault, something completely absent from the first video.

There’s a whole bunch of interesting things going on in the videos, like the fact that men act against the skinny white dude, but women act against the black dude (though obviously with such a tiny sample size, that might just be coincidence), and that in both these cases, the helpers are willing to physically defend the women, while physical harm is used as an excuse to do nothing in the second video. The clothes and statures they put the men in are also interesting, since the white skinny guy is wearing a suit, while the big black guy is dressed more casually, which looks to me like they’re projecting different, somewhat racially stereotypical, forms of power.

So anyway, the blond, white, conservatively dressed woman gets the most and most immediate help, by the most people (both men and women). The black “slut” gets the least, and is accused of being a prostitute and of being partially responsible for the situation. It seems then that there’s both positive and negative gender (and race) stereotypes involved 1: the former is the best fit for the “damsel in distress”, while the latter is the best fit for the “trashy slut”. Also, the black conservative woman and the white “slutty “woman are helped only by women (the former directly, the latter indirectly via a phonecall to the cops); this might be because women are less likely to attribute blame for domestic violence to the victim than men are2, i.e. the “innocent victim” signal seems to disappear sooner for men than for women.

Now, the connection between dress and morality is pretty obvious from the videos, but I’m thinking class enters into it too. The women in the black minidress are judged as lower-class (all the way down to prostitute), and like I said, this seem to transfer onto the man at least in the case of the black couple, who is also judged as lower class, and therefore possibly more likely to become violent on the spot; they also are judged as “trashy”, and therefore the situation isn’t perceived as domestic violence, but as one of those stereotypical “embarrassing” arguments that “trashy” couples have in public. The case of the white couple probably has different class dynamics since they dressed the guy in a fancy suit, but even so, the other people in the restaurant fail to identify with the “trashy” woman and therefore don’t bother acting. I’d have loved to see them attempting to dress the women in a sexually revealing but high-class outfit, to see if the change in perceived class would have made a difference. The reason I’m thinking it might have (thought not necessarily so) is because of stronger empathy by middle-class people for middle-class people, and because the Western Cultural tradition attaches morality stronger to the choices of the poor than to the choices of the rich, especially in terms of women’s clothing.3.

All in all, a pretty fucked up situation, but apparently quite typical for our society (though… I’m mildly concerned that all the studies I found were done on undergrads. I know they’re easy to get a hold of when you’re a scientist, but I have my doubts about just how representative they are of society as a whole)