The gist of the story is that when she was a young attorney, a judge asked Clinton to defend a man accused of raping of a 12-year-old girl. The articles alleged that Clinton “smeared” and disparaged the victim. Certainly, the criminal justice system frequently does not provide justice to victims of rape and sexual assault. To say that the system is imperfect is a gross understatement. That said, Clinton was doing her job. A job that she was obligated to take according to the Model Rules of Professional Conduct, and a job that guarantees that the constitutional protections of our nation stay in tact. Perhaps the reason these headlines hit such a deep nerve, is because as a future public defender, I will almost certainly have to defend people accused of rape.
Most of the time when I tell people that I am going to be a public defender they are supportive and say something overly generous along the lines of, “we need more people like you,” or “I could never do that type of work.” But every once in awhile, usually in a group of women, someone will say, “how could you defend a rapist?” or bluntly, “criminal defense work is un-feminist.” The first time I heard someone respond in the latter manner, I was taken aback and not sure how to respond. Surely public defense is nuanced and challenging, and part of the job is defending people guilty of horrendous crimes, but is it inherently un-feminist? I don’t think so.
For one, stating that public defense is un-feminist ignores the substantial amount of women in the criminal justice system. The number of women incarcerated in federal and state prisons has increased at almost double the rate of men in the past 30 years. In 1980, there were 13,258 women in federal and state prisons and in 2013 that number jumped to 104,134. According to The Sentencing Project, “these women often have significant histories of physical and sexual abuse, high rates of HIV infection, and substance abuse.”
The reasons for the rapid increase of female prisoners are varied and complex, but can be tied to four major factors – according to Erika Kates, a social scientist at Wellesley College – the war on crime, women’s susceptibility to drugs, relapsing to jail, and bail. During the war on crime, tough sentencing laws with mandatory minimums were passed for drug offenses; these laws contributed to an “800 percent increase in black women’s incarceration.”
Another factor that contributes to the rise in incarcerated women is women’s inability to pay for bail. Thus, women “languish” in higher security detention centers, farther away from home, because many states do not have the capacity to house women in their county jails. The juxtaposition of harsher sentencing laws for non-violent offenses, and the fact that women are poorer than men in every state, assures that many of my future clients will be women. Supporting the most politically disadvantaged women in our society, at the most vulnerable times in their lives, seems obviously feminist to me.
I understand that part of my career future career will be representing men who hurt women. While representing an alleged rapist is not something that I am excited about, doing so will not make me anti-feminist. In her article “How Could You Represent Those People,” Abbe Smith states that, “these cases are not my favorite part of the job, but I have found a way to do it that is consonant with my feminism.” Smith continues, “Feminists have a long history of working on behalf of the disadvantaged and marginalized. We take a critical view of law and recognize that it can perpetuate inequality.” Like Smith, my feminist beliefs are rooted in intersectionality and I understand that the patriarchy benefits from disenfranchising poor people and men of color, just as much as it benefits from disenfranchising women.
Our adversarial system of criminal justice pits parties against each other and leaves very little room for multifaceted accounts, legitimate justice, and genuine healing. The belief that some people are inherently good and other people are inherently evil is overly simplistic and fails to consider the various factors that intersect to determine people’s opportunities and outcomes. Frequently, my clients have suffered from a combination of adverse life events including physical and emotional abuse, addiction, mental illness, poverty, and institutionalized racism.
Indigent criminal defense is about more than guilt or innocence; it is about providing support and justice for the most disenfranchised members of our society. It is about the feminist notion of treating every person with humanity, regardless of their offense.
Calling public defense work in the context of sexual assault cases "un-feminist" categorically misunderstands the work that public defenders - and attorneys in general - do. Attorneys who work on criminal cases are making appeals to the public - juries are composed of a (sort of) random sample of the community at large. If a defense attorney has to make an argument that is "un-feminist," it is because those are the arguments that are most likely to resonate with a sexist public audience. It is tragic that sometimes public defenders use evidence that makes a complaining witness look like she was somehow at fault in a sexual assault case. And perhaps I'm just not creative enough to see a way around this. But in cases where public defenders make those arguments, it is because they know that the jury will potentially be influenced by them. The problem isn't public defenders - they are, more or less, doing their job of representing their client. The problem is that those arguments can be palatable to the public. The problem is that juries will hear that a girl was wearing revealing clothing and think that she brought rape on herself. The problem is that people think that women "shouldn't have" been out at night, and not that men shouldn't rape women. I believe that the entire social narrative about sexual assault has to change, and the fact that public defenders have to work with a sexist social narrative doesn't make the career "un-feminist."
ReplyDeleteThis was a really interesting topic raised in the "Sexual Assault Seminar" offered last fall. During one class we had a panel of public defenders, all women, who talked about their experiences defending men accused of rape and how it fit in with their broader conceptions of being a feminist. After class, in a more public forum, one of the women said something along the lines of: "being a feminist means I think people are humans, and I believe ideologically in a fair defense no matter who I'm sitting next to." From another angle, another public defender (also a woman), once presented on a panel that she focuses on micro-changes and impacts. Sure, she could be defending someone who is accused of raping a woman, but by being a great defense lawyer and a strong, capable female attorney, she feels like she is doing her part to turn the tables of power-play that often accompany gendered rape.
ReplyDeleteThis article reminded me of the same class session of "Sexual Assault Law" that Courtney mentioned. I recall specifically asking these female defense attorneys how they balance their duty of zealous advocacy with their personal views of feminism, particularly in sexual assault cases. At first, one of the women chuckled and said something to the effect of, "You have to leave your feminism at the door." As our discussion progressed in class, and in the public discussion later, all three women discussed the matter more thoughtfully, indicating, as Courtney noted, a more elegant conception of this duality. However, to this day I am bothered by the gut reaction of that woman in class. Of course we can all formulate an educated and thoughtful response when we discuss feminism and public defense in an abstract, public way. But when it comes down to it, do you really have to just leave your feminism at the door? Can theory always be put into practice in this arena?
ReplyDeleteI really appreciate your thoughts on this issue because when it comes to public defender work and women attorneys taking on this position, this issue comes up frequently especially when it comes to defending rape crimes. I do agree that to categorize pubic defense work as "un-feminist" misrepresents the work that many women have committed themselves to do and is a disservice to the people who are incarcerated. I know from experience that people see a conflict in public defense work, but to get away from that mentality we need more people including women involved in public defense work to provide a critical perspective of why doing this type of legal work matters not only for the individuals involved but for the communities that are affected by mass incarceration.
ReplyDeleteYou also mentioned that there are more women incarcerated today then ever before. This reminded me of Bryan Stevenson's book "Just Mercy" and his discussion of the rise of females in prisons, mainly that of poor women. The fact that more women i.e. poor women are incarcerated is disheartening, but it is indicative that its not men of color or women that are the source of the problem but the criminal justice system itself.