Raising the Bar

Sexual Justice: Supporting Victims, Ensuring Due Process, and Resisting the Conservative Backlash BY Alexandra Brodsky. New York: Metropolitan Books. 336 pages. $30.
Alexandra Brodsky. Photo: Lily Olsen

In many ways, Alexandra Brodsky’s new book, Sexual Justice: Supporting Victims, Ensuring Due Process, and Resisting the Conservative Backlash, is a breath of fresh air. Skipping many of the moral debates surrounding sexual violence, Brodsky, a civil rights lawyer, looks for solutions. With a survey of the past and present of sexual abuse adjudication procedures, she looks at what’s working (very little), why sexual violence is treated so much differently than other kinds of harm, and what a viable reporting path for survivors might look like.

Brodsky hasn’t always been so deep in the procedural weeds. As an undergrad at Yale she became an activist, and in 2013 she helped found Know Your IX, a student group that advocates for sexual assault survivors’ rights on campus. But Sexual Justice comes at a strange time for the anti-violence feminist movement, with the #MeToo movement ultimately creating few practical paths for justice and new Title IX rules, imposed by Trump Education Secretary Betsy DeVos, creating a grim landscape for sexual violence victims on campus. I spoke with Brodsky over email and asked her what she hopes Sexual Justice can accomplish.

MOIRA DONEGAN: Your book argues that we should take sexual violence claims seriously, not just as a cultural phenomenon or an emotional event, but as a question of legal procedure. What made you feel that this intervention was necessary?

ALEXANDRA BRODSKY: So much of public discourse about sexual harassment over the last decade has been consumed by debates about treatment of the accused. Some of those concerns are deserving of our attention and thoughtful solutions, and some are disingenuous, no more than rape apologism dressed up in legal terminology. So I wanted, first, to address the best version of the question: How can we treat everyone fairly when an allegation is made, whether that be in the workplace or a school or your DSA chapter or my brother’s sci-fi club? In my experience, when you grapple with the actual policy questions, it all seems less intractable than you’d think from chronicles of the culture wars. That clarity then creates space to identify and diagnose the anti-feminist backlash, which uses the rhetoric of due process to advance its true end: preserving male impunity. Answering the good faith questions is valuable in itself, and also illuminates the bad faith criticism.

The importance of due process, both as a legal procedure and as an ethical principle, already has a large base of defenders among those concerned for the well-being of men accused of sexual harm. What makes your perspective different?

Well, I think rape is bad. I don’t mean to suggest that I’m alone in caring about both sexual violence and due process; of course I’m not, and one of the book’s central points is that there’s no tension between those commitments. But many of the most high-profile critiques of #MeToo as a supposed travesty of due process are ultimately rooted in a trivialization of the harm itself—as though accountability for sexual harassment is inherently unfair because the problem is overblown, because women are so oversensitive and prone to fabrication. Both the Republican Party and The Atlantic are great at churning those takes out. To my mind, that’s actually a weaker commitment to due process than one that recognizes the gravity of the underlying harm and the rarity of false accusations, and still believes the accused deserve to be treated with dignity.

Some responses to the book seemed almost disappointed that you don't express more regret about your earlier work as an advocate for student survivors navigating the Title IX process. What has your intellectual evolution been like since your time as an activist, and does your experience match the story that has been told about you?

I have no doubt that many people would like to read the memoir of a red-pilled former anti-rape activist who can reassure them that, actually, it was better when schools refused to address sexual harassment. But that's not me, and that's not right. I certainly have a different perspective on these issues, a decade later and on the other side of law school. On some policy questions, especially those related to the purposes of punishment, my views have shifted, though I don't know if that's because I've gotten wiser or because the violence is now, personally, less immediate. But my fundamental commitments haven't changed.

One mistake that people make in thinking about the student movement against sexual assault is that they conflate organizers and administrators. Prior to the backlash, I don't think I ever had a conversation with activists about the different disciplinary procedures schools might use. Our problems were far more basic: when survivors tried to come forward, they were discouraged from doing so, threatened with retaliation, told to take time off until their rapist graduated. They had no access to mental health care or other supportive services. They were disbelieved, their experiences trivialized, without a true opportunity to be heard or plan to keep them safe as they tried to learn in the wake of violence. These were the injustices for which we demanded solutions. Some schools, under new political pressure to comply with decades-old civil rights obligations, rushed to implement sloppy disciplinary procedures, and that’s condemnable, but the rightful targets of that condemnation are administrators.

In your book you use the term “exceptionalism” to describe the unique institutional approaches to sexual violence that make reporting and adjudicating it more onerous than it is for other kinds of harm. But you also see the danger of “exceptionalism” in feminist efforts to provide protections to victims of sexual violence that are not applied to other kinds of violence. What is this phenomenon and why do you find it misguided?

As a general matter, courts subject allegations of different kinds to the same procedures so long as the stakes of the adjudication are the same. A prosecution for murder and a prosecution for theft use the same criminal procedural rules even though the substance of the offenses are, of course, quite different. Historically, though, there has been an exception to this rule: unique rules for rape trials, which served to make it uniquely hard for victims to prove their cases. Rape survivors were required, for example, to report very quickly. Juries were given instructions that rape allegations, specifically, are particularly easy to make and hard to disprove, even when the defendant is innocent. As an empirical matter, that’s untrue. But the explicit justification for these rules was a belief that rape allegations are distinctively incredible, mostly because—by courts’ and jurists’ telling—large numbers of women lodge false reports when they feel spurned or get pregnant. Put simply, exceptionalism was rooted in misogynistic rape myths.

American courts have mostly shed that rape exceptionalism over the last half-century, but the same spirit animates much of how we respond to allegations of sexual harm outside of courts, whether that be in institutions like workplaces and schools or in the media. We imagine that these allegations require different procedures than are used for other interpersonal harms, and the historical norm is for those procedures to be particularly onerous.

I don’t think we need to pretend sexual violence is like every other harm. It is extraordinary both in its systemic effects and in how it is individually experienced by many, though not all, survivors. But that shouldn’t translate into extraordinary procedures. Instead, we should subject allegations of sexual harm to the same procedures used for other kinds of interpersonal harms where the stakes of the allegation are similar. For example, a workplace should use the same investigatory procedure for race- and disability-based harassment, or general bullying, or physical fighting, as it does for sexual harassment; all implicate the ability of the alleged victim to stay in their job, and all come with the possibility of termination for the accused. Singling out different kinds of harms for different kinds of procedures is an invitation to import biases and stereotypes into the design.

But after all, sexual violence is different from other kinds of violence, because it is a symptom of, and an enforcement mechanism for, an unjust social hierarchy—the gender hierarchy. Is there a feminist argument to be made for handling sexual violence cases with different, if not more onerous, procedural rules? Does treating sexual violence like other kinds of violence risk ignoring its broader social context? Given how frequently existing reporting mechanisms fail survivors, do there need to be procedural correction mechanisms in place to counteract the cultural influence of misogyny and rape myths?

There are many ways in which it makes sense to acknowledge the extraordinary injuries of sexual harassment, including, for example, by requiring institutions to address it as a matter of civil rights law. And I understand why some feminists might be inclined to respond to the particular characteristics of sexual injuries by, say, singling out these allegations for unique procedures designed to reduce opportunities for re-traumatization. But I ultimately think that’s a mistake—not the design, necessarily, but the siloing. For one thing, there’s no reason why, if a procedural innovation is necessary to help survivors of sexual assault, we shouldn’t also offer it to people who experience other kinds of harms, including racial violence. I have strongly-held views on what makes for good policy for investigating sexual harassment, and it’s all equally applicable to other civil rights abuses and interpersonal harms.

I also just think that any attempt to single out allegations of sexual violence for unique procedures will ultimately backfire by inviting backlash, which will inevitably return us the historical norm: uniquely onerous procedures that make it particularly hard for survivors to come forward and receive the support they need. To illustrate, let’s go back to colleges for a second. The vast majority, if not all, of the criticism lodged against university procedures for investigating sexual assault over the last decade could be equally applied to university discipline writ large. For example, in most of the country, students have no right to adversarial cross-examination in a university hearing regardless of the type of allegation. Few seemed to care about that until they heard stories related to sexual assault. Then, many prominent cultural critics incorrectly diagnosed the issue as one specific to the rights of students accused of sexual assault, rather than the rights of students in general. And I believe that backlash was able to take hold in significant part because so many schools had created siloed procedures just for sexual harassment, such that it was easy to single out those policies for criticism even while the general student handbook was susceptible to the exact same objections. The result of that backlash, of course, was the Trump administration’s promulgation of new Title IX regulations, which now require singularly onerous, absurd, and re-traumatizing procedures just for investigations into sexual harassment.

In your book you write movingly about your conversations with men’s rights activists and men accused of sexual violence. But you also reveal that many of these conversations were not fruitful. Men’s rights activists sometimes showed themselves to be motivated by a desire for outright impunity for sexual violence perpetrators; accused men lied to you about the facts of their own cases. Do you still think these conversations are valuable?

I think #MeToo opponents battle a caricature of a feminist whom, they imagine, hasn’t thought through their thirst for men’s blood, for summary executions. In fact, feminists have been doing the most careful, thorough intellectual heavy-lifting about what just responses to sexual harm look like. And I think it is useful for feminists to hear from people whose primary relationship to sexual harassment allegations is concern for those accused. It’s helpful to understand what motivates them, including to see, in some cases, real shared values.

Wait—what shared values?

I should be clear that this wasn't true for all the advocates for the accused I talked with. But when it was, we could see we both cared deeply about, say, the precarity of American workers—how vulnerable most people are to arbitrary terminations absent unions—or about access to education. We worried that sloppy investigations would be fertile ground for bias, especially racial bias. Recognizing shared ground is illuminating, and also strategically useful. It opens an opportunity to convince someone that what motivates them to care about the accused should also motivate them to care about survivors, and to appropriately weight survivors' needs when considering matters of policy. All the advocates for the accused I've spoken to would agree that sexual harassment is bad, but many hadn't focused on how that violence implicates their central values—for example, how harassment can function as wage theft or push survivors out of school, or how survivors of color face unique skepticism and obstacles when they report.

So I’m glad I’ve had so many conversations with people on “the other side” over the last decade. Some have been rich and productive. And even when it turned out my interlocutor was, in fact, just a polished men’s rights activist, learning how they think about these issues informed my understanding of the backlash—both what drives it and how it operates.

One thing I learned, for instance, is how much criticism that purports to complain about process is motivated, in fact, by complaints about definitions. That is, many people say they are upset by how an allegation was investigated, but they actually just disagree that the underlying conduct is objectionable. There are important debates to be had about how to define sexual harms in ways that are neither under- nor over-inclusive, but we won’t come to any solutions if we cloak those underlying concerns in procedural complaints.

With all that said, the conversations were emotionally fraught for me, and I’m glad for the chance to take a break now.

Your book ultimately argues that civil suits offer the best chance for redress for most sexual violence victims. What makes lawsuits a good option? What possibilities do they present, and what perils do they avoid?

I don’t think law, in any form, will ever be the best chance for justice, in any rich sense of the word. But I do think civil suits offer a better path than criminal prosecutions for many survivors. Different people want different things in the wake of violence, and some want to see the person who hurt them incarcerated. But many don’t, and many have pressing material needs. The financial award at the end of a successful civil suit can directly address those needs in a way that criminal prosecution—in which a “win” means incarceration—cannot. Civil suits also provide survivors more control, since they get to decide whether to file suit, rather than depending on police and prosecutors. The opportunity to make a choice, to exercise autonomy, can itself be a healing experience.

Moira Donegan is a writer and feminist living in New York.