In a recently published research paper in the Stanford Law Review, Aya Gruber, a law professor at the University of Colorado, considers the concept of “sex exceptionalism” in the United States criminal justice system and asks readers to take a second look at how we treat sex crimes.
Gruber previously published “The Feminist War on Crime: The Unexpected Role of Women’s Liberation in Mass Incarceration” with University of California Press.
In “Sex Exceptionalism in Criminal Law,” Gruber argues that treating sex crimes differently than other crimes is not natural or neutral but rather has a political history that should be examined.
Sex exceptionalism is the idea that sexual behavior and desires are seen as fundamentally different from other human behavior and deserve special treatment.
“There was this notion that the feminist position on rape was always more, more, more, more incarceration, more policing, more prison.” Gruber told The Crime Report. “But it was also even non-feminists who were just having a hard time talking about it and didn’t approach it like you would approach a burglary or theft or other crimes.”
Gruber’s paper challenges traditional narratives about the origin of rape laws and their moral underpinings.
The article suggests that it is now time to critically examine whether sex crimes should be treated differently than other violent assaults and calls for a further examination of the impact the treatment of sex crime actually has on the legal system.
“I’m kind of saying to people, you think that this is like enlightenment, creating more sex crimes every day, getting tougher on sex crimes, but look at some of the history, even the recent history and you start to question that instinct,” Gruber said of her research.
Kari Hong, an immigration lawyer and law professor at the University of Montana, wrote an academic article, titled “A New Mens Rea For Rape,” about rape law and reform in 2017 and followed it up with an article for The Crime Report: “What Rape Reform Needs: More Convictions, Less Punishment.”
Hong told The Crime Report that she was originally motivated to write “A New Mens Rea For Rape,” while she was deciding how she wanted to teach the rape unit of a criminal law class at Boston College.
“My initial instinct was not to teach it at all because I was scared of it and I was scared of how to talk about it, and what I realized is that I think the best way to look at what’s going wrong is to really understand the history, which is what professor Gruber highlights in her paper too,” Hong said.
Hong suggests looking at sex offender programs in other countries as a way to consider alternative ways of prosecuting those convicted of sex crimes.
“Canada treats its sex offenders with science-based treatment and the recidivism rate is very low,” Hong said. “So instead of locking people up, if we give them treatment, they can actually be released and they won’t re-offend.”
“When post-#MeToo calls for zero tolerance run up against post-Floyd calls for radically reducing policing and imprisonment, commentators describe these clashes as zero-sum—gender equality at the expense of racial and social justice and vice versa. Progressives, especially feminists, experience them as painful dilemmas,” Gruber wrote. But, she argues, they don’t have to be.
“Because if we’re not, if feminists, if social justice actors aren’t critical consumers of state, criminal power, basically state violence, if we’re not critical about it, who’s going to be critical about it?” Gruber asked.
In “Sex Exceptionalism in Criminal Law,” Gruber lays out for readers a comprehensive history of the law’s unique treatment of sexual crimes, from early American law to contemporary practice. In conversation with The Crime Report, she called on potential reformers to consider the roots of why we treat sexual crimes differently than other forms of assault.
Ultimately, Gruber hopes to initiate a discussion about the origin of people’s assumptions about sex crimes.
“If you want to treat sex crimes differently because you have some account from some sort of either moral or empirical, or theoretical framing of these crimes, that’s fine. But put them on the table and we’ll talk about them,” Gruber said.