Few find it surprising that Jim Crow arose following the collapse of slavery. The development is described in history books as regrettable but predictable given the virulent racism that gripped the South and the political dynamics of the time. What is remarkable is that hardly anyone seems to imagine that similar political dynamics may have produced another caste system in the years following the collapse of Jim Crow—one that exists today.

– Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness

The thesis of Michelle Alexander’s book The New Jim Crow: Mass Incarceration in the Age of Colorblindness is exactly what the title implies: the U.S. criminal justice system has become a formal if unnamed means of anti-Black racial discrimination and social exclusion analogous to though distinct from Jim Crow. In the United States, Alexander argues, all aspects of this system — from policing to prosecutions to sentences to prisons to post-release restrictions — have not only a disparate impact on racial minorities, Blacks in particular, but were actively designed as a racial caste system and means of social control in the wake of Jim Crow’s collapse. And yet, because the system is officially race neutral and overt racial hostility by individual actors generally cannot be proven, the bulk of society goes around acting as though this racial caste system does not actually exist.

To make her case, Alexander turns naturally to the War on Drugs that began in the 1980s, at at time when drug use was on the decline and considered by virtually no one to be a serious social or criminal issue. Though “mass incarceration” and “the drug war” are not quite synonyms, they are fairly close. As Alexander shows, drug convictions make up a very large proportion of the enormous and unprecedented increase in incarceration rate in the past thirty years, from 300,000 in 1980, shortly before the drug war began, to over 2 million today. Alexander writes:

Drug offenses alone account for two-thirds of the rise in the federal inmate population and more than half of the rise in state prisoners between 1985 and 2000. Approximately a half-million people are in prison or jail for a drug offense today, compared to an estimated 41,100 in 1980—an increase of 1,100 percent. Drug arrests have tripled since 1980. As a result, more than 31 million people have been arrested for drug offenses since the drug war began. Nothing has contributed more to the systematic mass incarceration of people of color in the United States than the War on Drugs.

Alexander critically exposes the little understood origins of the War on Drugs. Generally, the drug war is traced to the explosion of crack cocaine in urban Black communities, when in fact crack did not become an issue until several years after the drug war was launched in 1982. The drug war has its roots in a combination of the deindustralization and globalization that resulted in mass job loss and a predictable and growing white backlash to the gains of the civil rights movement. The rate of Black unemployment quadrupled as a result of factory closings, while white unemployment increased at a far slower rate. With no new jobs appearing in communities of color, Black men were suddenly no longer needed as workers and therefore disposable. At the same time, unrest was growing among blue-collar white workers as a result of their own unemployment. Instead of creating jobs or addressing class disparities, conservatives harnessed this anger and effectively turned it on the Blacks with whom these whites actually shared exploitation and joblessness.

When crack hit in the mid-80s, years after Reagan officially launched his War on Drugs, he used it as a massive publicity campaign for his program. The media blitz dramatized and exaggerated the now infamous crack epidemic, promoted all kinds of ugly racist stereotypes about poor Black people, and spawned outrageously harsh mandatory sentences and sentencing disparities. At the same time, the sensationalistic  public relation campaign aimed at whites was backed up with enormous amounts of money and equipment being funneled to law enforcement who agreed to use it to fight this metaphorical “war” in a quite literally militarized way. As being “soft on crime” became a political career-ender, Democrats, too, got in on the act, instituting increasingly draconian and cruel punishments for the “crimes” of recreational drug use and addiction.

Before delving into The New Jim Crow, I considered myself relatively educated on the subject of the systemic racism of both the criminal justice system generally and the War on Drugs specifically. It wasn’t long after the introduction that I began to realize just how little I actually knew. Knowing that the system is racist is one thing; knowing how that racism legally and practically functions and how it has been actively protected by the highest powers is something else all together. This issue is about much more than just vastly disproportionate numbers of Black men in prisons and jails, or the fact that the U.S. has the highest incarceration rate in the entire world. It is about housing, disenfranchisement, the right to work, and the terrorism and social control of policing, probation, and parole.

Alexander’s “New Jim Crow” metaphor does not just describe prisons themselves, but the system that sends overwhelming numbers of Black men there in the first place and then proceeds to keep them on the margins of society for the rest of their lives upon release. This new Jim Crow, like the old one, creates a parallel society to which large numbers of Black people are relegated. From stop and search procedures that are rarely used against whites, especially middle-class ones; to mandatory sentences that lock people away for years on first-time non-violent offenses; to laws designed to keep released felons jobless, homeless, and disenfranchised, this racial caste system is quite deliberately almost impossible for its targets to escape.

Alexander walks us through the workings of the racist criminal justice system step-by-step, showing us how the U.S. manages to criminalize such huge numbers of men of color. The process begins with enormous federal financial incentives given to local law enforcement in exchange for agreement to comply with the drug war by rounding up as many people as possible. As middle-class white communities would be in an uproar if the same procedures used to criminalize Black men were used in their own neighborhoods — especially since, according to drug use statistics, they would result in as many if not more arrests — police concentrate their efforts on low-income, urban communities of color. Alexander horrifyingly pieces together how the Fourth Amendment has been effectively stripped of all meaning for the individuals who are stopped, and stopped extremely regularly, in these terrorizing everyday fishing expeditions. Police are allowed to stop individuals for virtually no reason and then ask to conduct a search without making clear that one can refuse; should one actually refuse, he will normally be arrested on a bogus charge, at which point he will be searched anyway. Meanwhile, virtually all claims of racial bias in this process have been ruled null and void by the Supreme Court, with racial profiling even sanctioned, provided it is not the “sole factor” influencing a stop.

After “the roundup,” Alexander shows how defendants have their charges trumped up and are denied meaningful representation. Often, they are forced to make a decision regarding whether or not to accept a plea deal in an incredibly short period of time, without first being given access to counsel. With extraordinarily high mandatory minimum sentences, charged individuals are almost guaranteed to plead guilty to “lesser” charges that are still likely to result in years in prison — all, usually, for simple possession. In fact, legislators and prosecutors admit that this coercive power to compel guilty pleas is precisely the intent behind minimum sentencing laws. Should defendants actually go to trial, they are likely to face inadequate representation from a vastly overworked lawyer and all or heavily white juries. Alexander further demonstrates that lengthy prison sentences are not the end, as social control extends through parole, which can result in a return to detention for the most minor of infractions — including continued addiction, being unable to make a scheduled check-in, or being unable to pay exorbitant fees. In 2000, 35 percent of all prison admissions were the result of parole violations. And, Alexander exposes, all claims of racial bias during these stages of the process have also been effectively cut off.

Finally, Alexander examines the period of “invisible punishment.” Upon release, ex-offenders face a maze of legal restrictions conjured up by “get tough” politicians largely in the Clinton 90s. Most commonly recognized is the virtual inability to find meaningful employment with a felony on one’s record, despite the fact that such a huge number of convicted felonies are non-violent. Even crueler than the inability to support oneself and one’s family is the fact that failure to maintain employment is a common cause of rearrest as a parole violation. In addition to being unable to obtain or maintain employment, let alone employment that provides enough to genuinely live off, individuals with felony drug convictions are barred from receiving federally funded public assistance in most states, including food stamps. Further, drug offenders are not eligible for public housing, and housing discrimination against not only former felons but also “suspected criminals” is perfectly legal. Public housing recipients are also able to be evicted for any drug crime committed in or even near their homes, even if they themselves were not aware of it, making relatives of usually-poor released prisoners reluctant to take them in, even temporarily. Ex-felons are barred from voting at least temporarily in almost every state, and voting rights are notoriously hard to get back even when ex-offenders are eligible, resulting in enormous numbers of officially disenfranchised Black citizens, and far more unofficially. None of this is to even begin to touch on the social stigma of a criminal record. All up, Alexander convincingly shows that the intent and effect of the new Jim Crow is to punish Black men, who entered the system only because they are Black, into perpetuity.

The New Jim Crow is not without its flaws and limitations. Alexander declines to take up the issue of increasing rates of incarceration for women both cis and trans, though these women are themselves overwhelmingly non-white, instead choosing to focus on the large majority of male individuals swept into the criminal justice system. While Alexander retains a sharp focus on class, she does avoid and ignore other marginalized identities that make one more likely to be targeted by the criminal justice system, such as disability and mental illness. Further, while the system was clearly designed decades ago to target Black men specifically, the more recent and apparently seamless adaptation of mass incarceration to the growing Latino population’s threat to white supremacy — and what this adaptation means — is left for future writers to take up.

While Alexander’s strict focus on the drug war is understandable, it can be somewhat frustrating in its exclusion of all other causes of mass incarceration. Though most of her racial rhetoric is bold, even radical, in various passages toward the end of the book I found myself disagreeing with some of Alexander’s more soft-peddled stances. The economic realities of the (never-named) prison industrial complex, also a huge player in increased incarceration rates and their maintenance, only garner a couple of pages of discussion. And surely, the topic of racism within the criminal justice system is too large for any single book to cover comprehensively, which means that major issues like police violence, prison violence, lack of adequate medical care in prisons, and so on, are barely touched on, if they are broached at all.

Despite the fact that one book cannot be everything, that’s not an insignificant list. And yet, this book is still invaluable in what it does accomplish: a vital primer for how racism and white supremacy function at all levels of the criminal justice system and how they are not mere accidents or unfortunate side effects. The New Jim Crow is compelling and endlessly quotable, a necessary read for anyone whose vision of social justice hopes to actually address race as a major axis of oppression in the United States.

Dear Jane Doe,

I’m sorry.

I’m sorry that they put you through this. Both the ordeal of the rape and the ordeal of having your entire life dragged through the mud, after all of which they refused to provide you with the simple dignity and decency of an acknowledgment of what they did to you. I’m sorry that money and reputation were valued more highly than your human worth — they judged horribly wrong. I’m sorry your community did not stand more strongly behind you. I’m sorry that all of us, as a society, created a world where this was possible. I am so, so sorry.

I believe you.

I believe that they raped you that night. I don’t care how many courts in the world say otherwise. This trial did not diminish my belief in you. For while excuses which suggest that rape victims bring their assaults on themselves may sway some, they do not move me.  They convince me only of their speakers’ lack of ethics, their inability to perceive sexual violence as serious in the first place, their lack of true defense that involves meaningful consent from the accuser. In any judicial system that did not exist inside a rape culture, that did not buy myths which serve to uphold a system in which men can rape with impunity, yours would have been a slam-dunk instead of a disaster. This I know.

In all that I have read about your rape, your trial — and it has been quite a bit — I have seen remarkably few people who have slandered you, called you names, and attacked your personhood argue that you were not violated, that you consented to what happened. I have seen them almost always argue, instead, that you simply deserved it.

They are all wrong. Every last one of them. You did not deserve it. You did not deserve it. You did not deserve what they did to you. Nothing you wore, nothing you said, nothing you did, nothing you drank made you deserve it. You did not deserve it. I hope you know that.

I believe that these men raped you. And you deserved that acknowledgment from a court of law instead of some random blogger. You deserved an award in your favor, not my empty words.

But I support you. There are others here who also support you. We believe you.

And though none of us are you, or have experienced just what you have now, your fellow rape survivors stand in solidarity with you, as people who have been assaulted, disbelieved, devalued, and pushed aside. As people who deserve more from the societies we live in.

You deserved more. I’m sorry. And because it cannot be said enough: I believe you.

In Love,
Cara Kulwicki

Trigger Warning for descriptions of sexual violence and abuses against sex workers

Last week, Jordan Flaherty wrote an article at Colorlines about how sex workers are being punished under an archaic and punitive law that specifically targets those who are convicted of selling oral or anal sex (as opposed to vaginal sex). The law makes these sex workers open to being labeled as felons by police and prosecutors, and worst of all, forces them to register as sex offenders.

Last month, a coalition of advocates, including Women With A Vision and the Center for Constitutional Rights, filed a federal lawsuit challenging the statue:

Eve, who asked that we not reveal her real name or age, spent two years in prison. During her time behind bars she was raped and contracted HIV. Upon release, she was forced to register in the state’s sex offender database. The words “sex offender” now appear on her driver’s license. “I have tried desperately to change my life,” she says, but her status as a sex offender stands in the way of housing and other programs. “When I present my ID for anything,” she says, “the assumption is that you’re a child molester or a rapist. The discrimination is just ongoing and ongoing.”

Eve was penalized under Louisiana’s 205-year-old Crime Against Nature statute, a blatantly discriminatory law that legislators have maneuvered to keep on the state’s books for the purpose of turning sex workers into felons. As enforced, the law specifically singles out oral and anal sex for greater punishment for those arrested for prostitution, including requiring those convicted to register as sex offenders in a public database. Advocates say the law has further isolated poor women of color in particular, including those who are forced to trade sex for food or a place to sleep at night.

In 2003, the Supreme Court outlawed sodomy laws with its decision in Lawrence v. Texas. That ruling should have invalidated Louisiana’s law entirely. Instead, the state has chosen to only enforce the portion of the law that concerns “solicitation” of a crime against nature. The decision on whether to charge accused sex workers with a felony instead of Louisiana’s misdemeanor prostitution law is left entirely in the hands of police and prosecutors.

Prior to the lawsuit, Colorlines was covering the issue over a year ago. Melissa Gira Grant wrote about the suit at Third Wave right after it was filed last month, and the INCITE! Blog was on it both last year and earlier this month. You should definitely go check those articles out, as there’s no doubt that I’m behind. But I still think the issue is worth writing about and getting further attention.

As noted by Flaherty, Louisiana is the only U.S. state that requires people who have been convicted of crimes that do not involve minors or violence outside the sexual violence itself to register as sex offenders. Meghan’s Law, which created sex offender registries, was clearly intended to target rapists. Louisiana has actively made the choice to abuse the registry to further shame, punish, and vilify sex workers who have not committed any violence. Women are by far the primary target of these efforts, though gay and bisexual men are also incredibly vulnerable. Of the women targeted by the state, women who are non-white, trans, and/or poor are most open to attack.

People convicted under the Louisiana law must carry a state ID with the words “sex offender” printed below their name. If they have to evacuate because of a hurricane, they must stay in a special shelter for sex offenders that has no separate facilities for men and women. They have to pay a $60 annual registration fee, in addition to $250 to $750 to print and mail postcards to their neighbors every time they move. The post cards must show their names and addresses, and often they are required to include a photo. Failing to register and pay the fees, a separate crime, can carry penalties of up to 10 years in prison.

Women and men on the registry will also find their names, addresses, and convictions printed in the newspaper and published in an online sex offender database. The same information is also displayed at public sites like schools and community centers. Women—including one mother of three—have complained that because of their appearance on the registry, they have had men come to their homes demanding sex. A plaintiff in the suit had rocks thrown at her by neighbors. “This has forced me to live in poverty, be on food stamps and welfare,” explains a man who was on the list. “I’ve never done that before.”

In Orleans Parish, 292 people are on the registry for selling sex, versus 85 people convicted of forcible rape and 78 convicted of “indecent behavior with juveniles.” Almost 40 percent of those registered in Orleans Parish are there solely because they were accused of offering anal or oral sex for money. Seventy-five percent of those on the database for Crime Against Nature are women, and 80 percent are African American. Evidence gathered by advocates suggests a majority are poor or indigent.

There are several broad critiques to be made of sex offender registry programs. In addition to the racial profiling and discriminatory enforcement noted in the Colorlines article, there are also further questions regarding whether sex offender registries actually keep communities safer and/or lower recidivism rates. Support for sex offender registry programs generally, however, should not be viewed as in any way incompatible with thinking that the Louisiana system is being used as a means of violence and oppression against sex workers and must immediately be overturned.

This is not in any way about keeping communities safer. It is about further punishing and portraying as deviant those who have failed to comply with societal rules regarding sexuality, class, and womanhood. It’s not about making communities safer, it’s about specifically ensuring that these particular community members are as unsafe as possible. And in that sense, it’s certainly working.

Because of the way that sex workers are generally made vulnerable to violence, as well as the ways that prisoners face frequent sexual assault, the most callous part of this practice may be the fact that such large numbers of those forced to register as sex offenders for non-violent offenses are victims of sexual violence themselves. Most of the women and men profiled in these articles talk about having been raped, whether as adults or children, whether by clients or family members, by prison guards or fellow prisoners. They must register as sex offenders, be unable to find employment or residences, face harassment and assault, and bear scarlet letters on their identification while at the same time, probably all of their actual rapists do not have to do the same. They have not only been raped, but been given their rapists’ punishments. They have not only been raped, but told that they are like, or perhaps worse than, their actual rapists.

And while this form of punishment for an act that should not be illegal in the first place is not even remotely acceptable for those who do engage in sex work because it is their preferred profession, it is also worth noting that there are many sex workers who do sex work as a form of survival or have otherwise been coerced. These workers are already more likely to be in street-based economies, and therefore are more likely to be targeted by law enforcement and more likely to be singled out for felony instead of misdemeanor punishment as a result of judicial prejudice.

In other words, punishing people for what they choose to do with their own bodies, when those actions do not harm any other person, is unconscionable — as is punishing them specifically for selling forms of sex perceived as less acceptable by a cissexist, heterosexist, anti-sex society. But quite a few of those women and men who have been forced to register as sex offenders didn’t even necessarily have a choice. And for that, they have been branded by a racist, anti-trans, classist, anti-gay system.

It will be interesting to see how this case plays out, and whether the court will decide with power and oppression as usual, or with the people and justice.

Trigger Warning on posts and links for very explicit descriptions of gang rape against an intoxicated person, severe victim-blaming and rape apologism, and ableism.

Four years ago, a 17-year-old girl was allegedly gang raped at an alcohol fueled party by 9 young men, almost all De Anza College baseball players. The girl was found by three female soccer team players, who are said to have forced their way into the room to break up the ongoing assault, finding the victim semi-conscious and covered in vomit while men performed various sexual acts on her.  The victim went to police; the three women were all very clear in their statements about how the encounter was not and could not have been consensual. A huge media frenzy ensued. And then, no charges were ever filed against the accused players.

Back in spring 2007, very soon after I first began blogging, the De Anza rape case was one of the very first instance of sexual violence I ever wrote about, so long ago that it was before I had come to terms with the fact that I was a rape survivor myself. For that reason among many others, it is a case that I have written about very extensively and that has always remained very strongly with me. Almost four years later, the case is still not over, justice has not been done, and the victim is still actively seeking accountability for what was done to her that night.

Three years after the DA decided to not pursue the case for “insufficient evidence” — despite the three witnesses to the rape never having been sought for grand jury testimony, and despite much forensic evidence never being tested — the victim has taken her case to civil court in a final attempt at legal recognition of the crimes against her. Lauren Chief Elk, Lauren Bryeans, and April Grolle — who have become such passionate advocates both for this victim and rape survivors in general — have, for the first time, been able to say what they witnessed that night in court. The details are more distressing than even the earlier reports indicated.

Bryeans testified that she and the other two soccer girls knocked on the white French doors leading to the 84-square foot bedroom. The door was opened twice by angry young men including Scott Righetti, who told her “she wants to be in here,” she said. The third time, it was opened by Stephen Rebagliati, who told her there was nothing going on and to go away. One time, she said, she saw a cell phone being held up in what she thought was camera mode.

After being rebuffed a third time, Bryeans said she and Chief Elk bent down and peeked through the door largely covered inside with a black sheet.

“Chief saw the light first, she ducked down and peeked in and said ‘Oh, my God,’ and pulled me down,” Bryeans said.

She said she saw a man in the missionary position on top of the teen and another man whom she identified as defendant Luis Cardenas pulling her head as if to get her to orally copulate him.

“She looked like she was in danger,” Bryeans said, adding the teen’s eyes were closed and legs spread, and she was moving her head away from Cardenas’ genitals.

Bryeans and the other soccer players began pounding on the door and were finally admitted after the men filed out.

When Bryeans viewed the teen up close, Bryeans said, the girl was lying on a futon, with her top hanging off, her pants wrapped around one ankle and vomit on her face and hair.

“I recall her saying, ‘help me,’ ” Bryeans told the jury of six men and six women. She also testified she and the other women had to carry the barely breathing teen to a car.

“I thought she was out for the count,” she said. Another soccer girl kept checking her pulse.

The cross-examination, however, leaves me firm in my belief that some defense attorneys simply are evil:

One defense attorney asked Bryeans whether she thought about calling 911, if she was so worried about the teen’s condition. No, she admitted. One pointed out the teen also said, “Sorry.”

Left with little valid defense, it would seem, these are apparently the defense’s attempts at inconsistencies. Presumably, the one defense attorney thinks it likely that a young woman would apologize for consensual sex, but unlikely that a rape victim would apologize for her own assault. Clearly, the way that sex defiles each and every woman who engages in it is legitimate reason for apology, yet the idea that women “want” their rapes and “get themselves into situations” where such assaults can occur would never cause an incapacitated rape victim to express remorse.

Many incredibly distressing assertions regarding consent, when it is possible, and when a rape can be agreed to have occurred, have been made throughout the process of this trial. Here’s a lovely beginning plethora:

In contrast, in her opening statements to the jury, an attorney for defendant Christopher Knopf claimed the that girl’s blood alcohol level hadn’t reached three times the legal limit until well after the incident. She pointed out that the girl’s lap dance was coordinated and lasted for several songs. Also, just before the alleged attack, one of the soccer players chatted with the young woman and admitted that the teen didn’t appear drunk then at all.

The attorney, Alison M. Crane, shocked the jury by beginning her statement with a powerful opener — by uttering an expletive-loaded sexual invitation she said the teenager gave to her client and many of the other men, “leading any reasonable person to believe she was capable of consent and indeed desirous of contact.”

In Knopf’s case, the teenager “approached him in the kitchen, rubbed up against him, grabbed his genitals, told him he was ‘so hot,’ backed him into the bedroom and then sued him,” Crane said.

Crane also argued that the girl doesn’t suffer from post-traumatic stress disorder and has a long history of academic and interpersonal problems, including a personality disorder that essentially causes her to blame others for her mistakes.

“Her conduct was the sole and exclusive cause of everything that happened that day,” Crane told the jury. She “doesn’t want to face the truth of what she did that night.”

Because performing a lap dance or two is the same as consenting to sex. And expressing sexual interest indicates not only ability to consent, but willingness to consent to 9 men “having sex” with you while you drift in and out of consciousness. Further, you can’t be a rape victim if you don’t have PTSD — as properly diagnosed by a lawyer,  not your own doctor — women with troubled lives are never raped, and neither are women with disabilities. Also, lying bitches lie in order to get nice guys in trouble. It’s their fault they got raped, anyway. They just don’t want to face up to what sluts they are. Who would? Sex is so icky.

“Risque” photos of the victim have also been shown in court by this same lawyer as attempt to discredit her, since sexual women can presumably not be raped. While showing a photo in which the woman makes a sexual gesture, Crane jeered, “Did you have PTSD when you did the acts shown in these pictures?”

We learned more about proper and improper reactions to having just been sexually assaulted from witness Anthony Lovaglia:

He also acknowledged that he said previously, to detectives, prosecutors or lawyers in a deposition, that when the teen left the room after allegedly being raped, she had “the weirdest smile, like she liked it.”

Rape survivors’ reactions must always be policed. We’ve learned in past cases that smiling in weeks or months after an assault can be seen as evidence that it didn’t really occur. Not contacting police or going to the hospital quickly enough is seen as proof that it didn’t really happen. And a “weird smile” is apparently only to be interpreted as “she liked it,” and not potentially as an expression of a state of shock or attempt to hold oneself together through trauma.

Rape victims should also not be allowed to escape from the event with recreational activities, and people with disabilities should not be allowed to have fun:

O’Malley also testifies the teen was able to return to playing competitive softball, despite her back pain. Yet the teen also asked her physician to fill out a disability form for work, even though she was well enough to play softball. The doctor signed the form.

(The victim later stated, “I said I wasn’t going to let them take away the one thing I’ve been doing since I was 4 years old.”)

One of the most repulsive moves by a defense attorney yet proves that there may be a bit of desperation on their part:

Defense attorney Crane points out on cross that the nurse told a sheriff’s investigator she was able to say her name (barely), implying the teen wasn’t as far gone as she told the jury. The nurse also told the investigator that the teen was able to respond when her mother arrived at the emergency room and that she recognized her name, that is, responded to “considerable verbal stimuli” and therefore wasn’t unconscious.

One has to wonder how strong your case is, if being able to barely say your name is a form of evidence that consent could be given. At the same time, it’s difficult to know what the reactions of the jury, steeped in rape culture themselves, will be.

Much of the reporting on the trial has also been disturbing. Attempts at fairness and balance — when, it should be noted, the same presumption of innocence does not apply as it would if this were a criminal instead of civil trial — have resulted in shockingly appalling headlines like “De Anza trial begins with question: Was woman gang-raped or a seductress?” Here’s a sensitive and careful lede for you:

Did a group of De Anza College baseball players gang-rape a teenager whose blood-alcohol level was three times the legal limit while she lay motionless in a pool of vomit?

Or are the men being unfairly blamed by a troubled young woman who wasn’t that drunk and explicitly invited them to have sex with her?

Nearly four years after the alleged assault at a San Jose house party triggered widespread controversy, those questions are finally being publicly aired before a San Jose jury.

Something tells me this article could have been written a little less problematically. I also feel like perhaps the modesty of her clothing choices was not relevant for commentary. And this opinion piece — in which Scott Herhold writes, immediately after concluding that the victim was raped, “Did she contribute to her plight? Yes. By doing a lap dance atop one boy and allegedly grabbing the crotches of others, she helped things along.” — is perhaps the grossest thing I’ve ever read.

But what do I know? Being anti-rape creates an automatic bias.

This is a huge amount of information, and there is so much more contained in the many links throughout this post that I did not have the space to include. But in addition to all that has already been listed, the alleged victim has been dealt a strong set of blows throughout the trial. The fact that police strongly believe that she was raped was not allowed to be expressed before the jury, and the photos taken by the defendants during the alleged assault were also declared inadmissible. Multiple defendants have also been dropped from the case. And, because this is a civil case — and therefore a jury must determine precisely which percentage of “fault” all parties in this case bear — it has been all but outright stated that as a result of her drinking, the victim is to blame for being raped.

She has at least finally had the chance to speak for herself:

She still has no memory of being sexually assaulted by De Anza College baseball players at a party when she was 17 and extremely drunk — not what happened in the tiny room where she was allegedly discovered in a pool of vomit, nor being rushed to the hospital.

But alternating between shouts, sobs and near-whispers, the young woman — known in the courtroom as Jane Doe — told a rapt civil jury Monday that the alleged gang rape ruined every aspect of her life, from pursuing a career to parenting.

Even the birth of her son two years ago was tainted by the memory of being intimately examined in March 2007 by a specially trained nurse looking for signs of rape.

“It’s supposed to be one of the happier days of a parent’s life,” she wailed while breaking down in tears, “and I felt violated. I mean, it was a cesarean and I felt violated.”

She also stated:

“I’ll never be embarrassed because I’m standing up for what’s right. I don’t care what anyone says, I know what’s right and I will never be embarrassed.”

Her testimony makes clear to me that she is a strong and resilient person. I wish her the love and strength to get through this trial, which continues, as well as the awful things that have been and will be said about her. I hope she knows that she is not alone, and that despite the barrage of attacks she is under, there are many of us out here who support her.

Yesterday, I wrote about the horrific case of Kelley Williams-Bolar (pictured left), a woman who has been jailed for ten days and slapped with a felony record — which will prevent her from obtaining her teacher’s license — for sending her children to a school district other than the one they lived in.

My analysis of this unconscionable set of events can be found in the previous post. Today, I just want to draw your attention to a way that you can help Williams-Bolar appeal her case. Via Change.org, Williams-Bolar is working with the National Action Network, and is in need of funds to help her pay the legal fees she will incur in appealing the judge’s verdict.

You can send donations to the National Action Network Akron Chapter, c/o Kelley Williams-Bolar, P.O. Box 4152, Akron, Ohio, 44321. Checks can be made payable to Williams-Bolar.

Please give if you can and help spread this information far and wide.

Last week, a woman was sent to jail for ten days, placed on two years probation, and ordered to complete 80 hours of community service for a felony conviction. Her crime was fudging documents so that she could send her two daughters to the “wrong” school district, in the richer Akron, Ohio suburb where her father lived. She was led away in handcuffs.

On Saturday, a jury found Williams-Bolar guilty on two counts of tampering with records. She was also facing one count of grand theft, but the judge declared a mistrial on that charge after the jury couldn’t reach a verdict.

Williams-Bolar could have been sent to a state prison for up to 10 years, but Judge Cosgrove decided on a 10-day sentence in the Summit County Jail after weighing Williams-Bolar’s lack of criminal record with the seriousness of her crimes.

“I felt that some punishment or deterrent was needed for other individuals who might think to defraud the various school systems,” Cosgrove told NewsChannel5 after the sentencing.

Prosecutors said Williams-Bolar lived in Akron, but falsified enrollment papers in the Copley-Fairlawn School District so her two girls could attend schools for two years.

Prosecutors said the lies cost the district about $30,000. Copley-Fairlawn does not have open enrollment and out-of-district tuition is about $800 per month.

The school district spent about $6,000 to bring the case to trial. That included hiring a private investigator who followed Williams-Bolar and her children around while secretly videotaping their movements.

Superintendent Brain Poe said Copley-Fairlawn has lost hundreds of thousand of dollars because of parents illegally enrolling their children into the schools.

Poe said residency disputes are usually resolved after parents prove that they live in the district, pay tuition or remove their kids from the schools.

This marked the first time that one of their residency challenges went before a jury in criminal court. Poe said prosecuting this case was meant to send a message.

“If you’re paying taxes on a home here… those dollars need to stay home with our students,” Poe said.

One cannot honesty discuss this case without discussing the fact that Williams-Bolar is a black woman, raising black children in a city that has a large non-white population, living in a home secured through the local Housing Authority, while Copely is a very comfortably middle-class and overwhelmingly white town. Williams-Bolar is a mother who has been jailed for sending her kids to the “wrong” school district. But she’s also a black mother who has been jailed for sending her kids to a white school district.

Still, some will inevitably argue that this is not an issue of race or even class. It’s an issue of rules, of order. Someone broke the rules, and now they have to pay.

I would like to remind them firstly that who pays and how is always political.  But just as importantly, it is not arbitrary where we place borders, how we enforce borders, and who we punish for crossing them. Borders, especially modern ones, are chosen. They are artificial. We like to tell ourselves that we create borders out of necessity, to more efficiently manage communities and resources. But we also create those borders specifically to keep other people out, to control resources in a way that prevents certain populations from accessing them. There is no accident in how borders are drawn and who is being kept out and removed from resources, not along lines of race, and not along lines of class — especially not in a country were so many borders were explicitly drawn with racist intent, during times of colonization, during times of slavery, during times of Jim Crow and less “official” forms of segregation, or even during modern times of “legals” and “illegals.” It’s a little too easy to write off as coincidence that the “wrong” school district was white in a country that has a very long and modern history, both official and unofficial, of keeping all non-white but especially black students out of white schools.

As Superintendent Poe explicitly states up above, this is about “our” tax dollars, and keeping them where they belong. And anytime we start talking about “us” and “them,” we need to look at what we mean by those words, because it rarely reflects well on our intentions and prejudices. William-Bolar crossed a border that was designed to keep her out. She “stole” resources that were apparently not her or her children’s to have. (Indeed, she was also charged with grand theft, which resulted in a hung jury.)

I think it’s about time we think about what we mean by “racism” if a black mother landing in jail because she sent her kids to a better school that would not have them doesn’t count, if calling it “stealing” when she gives them access to resources these white parents get to take for granted doesn’t qualify. If we don’t understand the racism of the much higher likelihood that a black mother will have to send her child to a sub-par school that will not teach them all they need to know than a white mother, if we don’t understand the racism of punishing her for fighting back against that inherently unequal, oppressive, white supremacist system, we don’t understand the first thing about racism at all.

In fact, (though I object to his metaphorical use of the word “cripple”) I can’t say it any better than Dr. Boyce Watkins did in his blog post:

This case is a textbook example of everything that remains racially wrong with America’s educational, economic and criminal justice systems. Let’s start from the top: Had Ms. Williams-Bolar been white, she likely would never have been prosecuted for this crime in the first place (I’d love for them to show me a white woman in that area who’s gone to jail for the same crime). She also is statistically not as likely to be living in a housing project with the need to break an unjust law in order to create a better life for her daughters. Being black is also correlated with the fact that Williams-Bolar likely didn’t have the resources to hire the kinds of attorneys who could get her out of this mess (since the average black family’s wealth is roughly 1/10 that of white families). Finally, economic inequality is impactful here because that’s the reason that Williams-Bolar’s school district likely has fewer resources than the school she chose for her kids. In other words, black people have been historically robbed of our economic opportunities, leading to a two-tiered reality that we are then imprisoned for attempting to alleviate. That, my friends, is American Racism 101.

This case is a textbook example of how racial-inequality created during slavery and Jim Crow continues to cripple our nation to this day. There is no logical reason on earth why this mother of two should be dehumanized by going to jail and be left permanently marginalized from future economic and educational opportunities. Even if you believe in the laws that keep poor kids trapped in underperforming schools, the idea that this woman should be sent to jail for demanding educational access is simply ridiculous.

You should read everything he has to say on the subject.

In the end, William-Bolar’s real punishment is not the indignity and injustice of her 10 days in jail. It is the felony record that will follow her for many years to come. It will inevitably keep her from obtaining employment, from creating an economically better life for her daughters. Specifically, it will keep her from getting the teaching license she has been studying for at college — money, time, and effort all sent down the drain. A dream and opportunity taken from her because she had dreams for her daughters, wanted opportunities for them, and did the best she could in an oppressive system to see to it that they got them.

Maybe we should talk about that when we want to talk about theft, what was stolen, and from whom.

via sheresists

UPDATE: Information on how to help Kelley Williams-Bolar with her legal fees can be found here.

Trigger Warning for descriptions of sexual violence and being confronted by one’s rapist

Just a couple months ago, I wrote about how a case in which an alleged rapist defended himself, and therefore cross-examined his own accusers, ended in a threat of suicide from one of the alleged victims. In a follow-up, I noted the extraordinary brokenness of a system that consistently fails to protect the needs of victims and puts their emotional and physical safety in danger.

Now here comes another story in which an accused rapist was given access to his alleged victim in court, after he elected against repeated advice to act as his own defense. After spending more than two hours questioning the woman he allegedly raped, Luis Munuzuri-Harris abruptly decided that he would now like a lawyer, after all.

A rape suspect who is acting as his own lawyer grilled his alleged victim on the details of the sex assault, and then asked the judge for a court appointed lawyer — who could now call the woman back to the stand and make her relive the ordeal again.

Rape suspect Luis Munuzuri-Harris had repeatedly rejected suggestions that he use the public defender, but changed his mind after he questioned his accuser.

Having already been subjected to the trauma of being questioned directly in open court by the man she has accused of raping her, this woman must now give her testimony again, for the lawyer that Harris has finally decided he wants with extraordinarily convenient timing.

The article notes that the judge, who it seems has advocated for the accuser as best he can throughout the trial, is considering a mistrial. A mistrial, however, would also require the accuser to repeat the trauma of her testimony. What Harris has accomplished here, then, is a situation in which the victim has no choice but to relive the horror of the night on which she was raped not only once, but twice. There is, effectively, no way out. (UPDATE: A mistrial has been denied.)

Like TigTog at Hoyden About Town, I have severe suspicions that this was likely Harris’ plan all along, to traumatize and intimidate the victim by questioning her directly, only to then secure himself a legitimately effective defense. It seems highly likely that the intent was never for Harris to defend himself against these charges, but to use and abuse the system against his accuser as dramatically and punitively as possible.

But ultimately, whether that was his intent or not, abuse was absolutely the result. Further regardless of intent, any system which would allow the potential for an alleged abuser to enact this kind of (further) abuse in its name is not one which is upholding the tenets of justice.

The good news is that court transcripts certainly make it appear as though the victim is highly tenacious:

The request for a lawyer comes after days of tense emotions in the Florida courtroom as Harris questioned the woman for more than two hours about the night of the alleged crime and asked her personal questions such as whether she wore underwear.

When Harris asked her, “When this person walks up to your car … do you get out of your car?” she corrected him, “When you walk up to my vehicle.”

At another point, she corrected his question by saying, “I was raped by you. You forced sex upon me.”

But the fact remains that we don’t know what’s going on in her head, the trauma she may be experiencing privately. It’s also true that a victim should not have to be extraordinary just to report violations of hir body. Whether weak or strong, timid or bold, shy or outspoken, all of us should be able to bear witness to the violence others subject us to without fear of retaliation and intimidation or the knowledge that the system which purports to protect us will stand idly by. A victim should not have to be extraordinary to get a chance at justice. One’s right to not be harmed should not be based on arbitrary determinations of virtue, or their ability to respond in a certain way to a traumatic event.

With such high stakes in the U.S. judicial system, as I’ve discussed in my previous posts on this topic, there are inevitably competing rights. In light of a remarkably long history of defendants’ rights being violated, marginalized individuals being falsely convicted by prejudiced courts, and non-violent offenders being subjected to highly punitive sentences, the rights of defendants need to be protected, and indeed should be protected better than they currently are.

But in any real system of justice, someone needs to be on the victim’s side. Someone needs to center the victim’s needs. The current model of “justice” is not only oppressive towards those accused of crimes, it is also oppressive to many of those who have been the victims of crimes. This system not only harms communities by overcrowding prisons and enacting persistent and intrusive state surveillance, but by also assuring those communities that it cannot be trusted to take their right to not be victimized seriously. Which is to say that if it is inherent to this system to have such high stakes that it is no longer legitimately possible to protect and advocate for victims without furthering other means of oppression, we need a new system.

Last week, Adam Sewer published a great article at the American Prospect about the trend of making former prisoners literally pay for their own incarceration, with “user fees” being imposed as a condition of parole. It was a practice that I was unaware of, and one that I imagine many readers who do not have direct interactions with the prison system also did not know about:

Missouri defense attorney Justin Carver has seen it a million times. One of his clients, an 18-year-old parolee, was about to be sent back to prison because he was late paying restitution and “user fees” related to property-damage and peace-disturbance charges. The client showed up at court with $200, more than enough to pay off his $118 debt, in the hopes he could convince the judge to let him stay out and graduate from high school. The judge said he’d take the money, but Carver’s client would still have to spend 20 days in jail. Since he wouldn’t be able to graduate anyway, Carver’s client pocketed the $200 and spent two months in jail. Given that one Missouri county-prison administration estimated the cost per day of housing a prisoner at $64, it’s more than likely that stay cost the state several times the amount Carver’s client owed.

“If the taxpayers knew that was going on, they’d go bananas,” Carver says.

Unfortunately, I’m not nearly as optimistic as Carver. Personally, I know far too many people whose response to the above story would be a shrug and “Well, I guess he should have paid his fees on time.” Among many who would be outraged, the sense of anger and exasperation would come from the cost to the state — not the absurd and tragic fact that a young man was not able to graduate from high school over some property damage and $118. And I’d argue that’s really not a whole lot better than not being outraged at all.

It’s true that in a public policy sense, doing the right thing tends to cost less than doing the wrong thing. Providing universal health care would cost less than the waste and neglect of the current U.S. health system. Providing sustainable housing, mental health care, and addiction treatment would cost less than the current responses to either homelessness or drug use. And yes, it’s true that the right absolutely has obscured these truths, and their all too successful efforts do need to be combated. But unless we care about the underlying issues, we’re just going to keep finding ways to cut costs — or make it look like costs are being cut — without shifting our actual approaches to the problems at hand.

This creation of “user fees” for ex-prisoners is a perfect case in point. People are finally beginning to care about the cost of the prison industrial complex to the U.S. public. But since recidivism and humane treatment for offenders are still not the primary concerns, and the public still has a strong investment in punishment, the “solution” has simply been to find new and more inventive ways to punish offenders. And such punishments may take the form of “user fees” or cutting programs within prisons that make life more bearable and recidivism less likely.

In the recent Florida governor’s race, Republican candidate Rick Scott — now the governor-elect — pledged to cut prison costs by a billion dollars, mostly by reducing the salaries and benefits of prison officers, who responded with an ad campaign that accused Scott of wanting to release dangerous felons early. Neither side was willing to consider the one thing that might actually cut costs: reducing the number of people in prison. The dispute reflected a perilous dynamic for corrections reformers. State governors with recession-ravaged budgets are attempting to reduce prison costs without reducing their prison populations. They are reluctant to invest in solutions that make it look as though they’re “going easy” on people who have committed crimes, so programs to help the formerly incarcerated re-enter society have been given the short shrift in fiscally motivated prison-reform plans.

A 2010 survey published by the Pew Center on the States found that 61 percent of respondents supported sending fewer low-risk, nonviolent offenders to prison and that 75 percent favored reducing prison terms for such offenders if the ultimate goal was to save money, despite the fact that the sample skewed conservative. The results suggest Americans would be receptive to an effective re-entry program. Seventy-seven percent strongly agreed with the statement that “an effective probation and parole system would use new technologies to monitor where offenders are and what they are doing, require them to pass drug tests, and require they either keep a job or perform community service.”

Now, it’s certainly positive that U.S. citizens are increasingly interested in seeing non-violent offenders not spend time in prisons — it’s a start, at least. But I think that the travesty of effectively paying for one’s right to parole proves that basing incarceration policy solely off of the desire to save money is incredibly dangerous. Supporting less incarceration because of money rather than a desire for justice, improved lives, and safer communities is likely to result in nothing more than punitive structures that look and act an awful lot like prison, anyway. Indeed, looking at what kind of parole and probation system the public supports, one has to wonder what exactly the point of constant tracking and surveillance is if not a somewhat more lenient form of imprisonment, and what they expect and hope to happen when one tests positive for drugs or is unable to find or keep a job. I’m guessing that most respondents are relying on the threat and reality of prison to keep these individuals “in line.”

In other words, it seems that we, as the U.S. public, are increasingly open to alternatives to prison — but only so long as the prison system remains the backbone of our method of dealing with all undesirable behavior. The fact that we’re trying to force ex-offenders to pay for their own incarceration even though it probably costs significantly more than the alternative should be considered a problem, but it’s not the problem. The problem is that really, most of us are probably pretty alright with that. Because the point isn’t really so much about saving money, but proving to offenders and ex-offenders that they aren’t worth “our” money. The point is to force ex-prisoners to literally pay their way to freedom. The point is the same as the point of the entire prison system, at least from the general public’s point of view — punishment.

So I’m not sure that fighting the practice of “user fees” with information about how they’re actually costing more is the most effective method, either from a practical or social justice standpoint. It’s not particularly practical because saving money doesn’t really seem to be the goal of these initiatives — no matter what the official reasoning and surveys happen to say. The goal is to add punishment on top of punishment. And it’s not great social justice because focusing on the money completely eludes the conversation of how punishment is being wielded primarily against oppressed classes, furthering a cycle of harm, violence, imprisonment, and marginalization. It ignores that prison is designed to be oppressive, and forcing overwhelmingly already-oppressed (and poor) people to pay for the means of oppression against them is beyond unjust. Appealing to people’s pocketbooks instead of their senses of justice seems a lot easier and realistic, but it doesn’t question the system in which the prejudice and financial concerns of the privileged get to determine the worth and humanity of the oppressed.

The mainstream conversation needs to move away from a conversation about monetary costs — which we need to remember is far more frequently used against imprisoned populations than in favor of them — to one about recidivism, specifically why recidivism rates are so high and how to most effectively lower them. This seems like a far more effective and appropriate starting place for leading into conversations about why we are imprisoning so many non-violent offenders to begin with, where this desire for punishment comes from and whether it is either healthy or just, and how this connects to the way the prison system acts as a means of oppression for marginalized communities. Hopefully it would even eventually lead to conversations about punishment for violent offenders, and whether punishment is really the best way to prevent future harm (a topic I myself still struggle with deeply).

Centering the conversation around justice instead of money takes a lot more work and induces a lot more headaches, at least in the short term. But it’s the only way to manage conversations like ones about forcing ex-offenders to pay for their own incarceration effectively, in a way that doesn’t just play wack-a-mole with each symptom of a highly racist, classist, and all other kinds of -ist system one at a time.

Trigger Warning for sexual violence and rape apologism

A couple weeks ago in Idaho, a judge dismissed a rape case in which a woman was allegedly raped by a man who she believed at the time to be her boyfriend. The article itself contains a graphic description of the charges themselves (Trigger Warning), but what is of interest to me for the purposes of this post is the reason for the dismissal. The reason was that this was a case of rape by fraud — but the law only recognizes rape by fraud if the woman thought the rapist was her husband.

Fourth District Judge Cheri Copsey said Wednesday she was not happy to dismiss rape charges against two Boise men who police say tricked an intoxicated woman into thinking she was having sex with her boyfriend.

But Copsey said Idaho law left her no choice because the woman wasn’t married.

“Unfortunately, I don’t think it falls within the definition of rape, as defined under Idaho law,” Copsey said as she dismissed a grand jury indictment for charges of rape and aiding and abetting a rape filed against Cielo Sanchez and Zachary McGraw.

Subsection 6 of the Idaho rape code specifies that the crime can be charged when the victim “submits under the belief that the person committing the act is her husband, and the belief is induced by artifice, pretense or concealment practiced by the accused, with intent to induce such belief.”

The key word is “husband,” Copsey said.

She said she suspected that if she allowed the case to go to trial, she would have had to dismiss the case when prosecutors were done.

“What bothers me is the fact is the Legislature realized that someone could be fraudulently induced, and that could be rape, and yet has never chosen to expand protection (the law) gives to married women,” Copsey said. “Unfortunately, the Legislature has never amended (the rape law) to make it to meet the requirements of modern society.”

Initially, it seems a little bit difficult to fathom what exactly was running through the minds of legislators when they crafted a law stating that rape by fraud is a crime, but only when it has been committed against a woman who thought the assailant was her husband. I, of course, do not actually know what was running through their minds. As it seems to address a rather specific set of circumstances, the legislation very well may have been a response to an individual event. But without knowing the exact reasoning behind the wording of the law, I immediately recognize two of its rather repulsive implications.

The first is the suggestion of women as the property of their husbands. Not that long ago, and in many quarters still to this day, rape against a woman was not understood to be a violation of her rights — as women had no right to bodily autonomy — but a property violation against the woman’s father or husband. The woman was not her own private citizen with her own private rights, but an extension of a man; to violate her was to violate the man she was connected to, by defiling a piece of property that largely held its value in sexual purity. Here, the tying of the violation of rape by fraud to the victim’s marital status quite easily conjures up this recent history of women as property. The specific reference to the victim’s husband causes one to wonder whether the goal of the law was not to protect women against rape, but to protect men against the attempts of others to gain access to their wives through the use of fraud.

The second implication is that women who consent to sex with one person cannot be raped by anyone else. The legislation more or less states outright that only married women can be raped by fraud. Because of the specific nature of rape by fraud — that a person thinks sie is consenting to sex with one person, only to find out that the person actually touching hir is another person entirely — this statement very clearly suggests that only married women should be agreeing to any kind of sexual contact at all, and only with their husbands. The implication, therefore, is that any unmarried woman who consents to sex with any man has consented to sex with them all. Because of her supposed “promiscuity,” as evidenced by her willingness to have sex outside of marriage at all, she cannot be raped. Indeed, the law just told the victim in this case that according to the state of Idaho, she was not raped.

It doesn’t particularly matter to me whether or not these implications were intentional. Wider context matters, and if whoever wrote this law didn’t consider the implications when doing so, that’s on them. Their intentions don’t make the implications exist any less. Not intending to treat women as the property of their husbands doesn’t make the effect any less real in a world where women have suffered and continue to suffer extraordinary abuses, including sexual violence, precisely because of that belief. Not intending to say that women who have sex outside of marriage are unrapeable doesn’t make the effect any less real when a woman who was raped has been told that because of her marital status, her rape doesn’t count. And that’s not even to touch on how the gendered nature of the legislation suggests that only women are raped, and that only men commit rape, leaving many potential victims without any recourse.

The good news is that in addition to harsh criticism of the law by the judge who dismissed the charges, a legislator or two may be up in arms as well. While I commend legislators who are looking into changing the law so that it applies to more than just married women, I have to note that a band-aid probably isn’t good enough. As stated above, it is indeed entirely possible that the original law, which has proven so grossly inadequate now, was written in response to a specific instance just like this one. That means that “insert[ing] another sentence” just doesn’t cut it. Changing the law to address unmarried victims — and I hope it goes without stating that at the very least, if the law is to be changed so narrowly, it should at least be changed in a way that is gender neutral with regards to both victims and perpetrators — doesn’t address the wider context of rape laws that don’t adequately define consent and a lack thereof.

McGraw’s defense attorney L. Craig Atkinson later filed a motion to dismiss the charges because they did not fit Idaho’s rape statute.

Sanchez’s attorney, an Ada County public defender, joined McGraw’s motion.

First, there was no allegation the rape was done by force or that the woman was unconscious at the time.

In his motion, Atkinson argued that reports indicate the woman was able to give consent for sex that night, and did.

Atkinson argued that Idaho code does not define alcohol intoxication as “temporary unsoundness of mind,” which is a strict mental health condition that could make a victim incapable of giving consent.

He also argued that the subsection of a law that says a victim can’t give consent for sex because she is “unable to resist due to any intoxicating, narcotic, or anaesthetic substance” did not apply to this case either.

“There are no allegations in this case that the victim was unable to resist due to intoxication,” Atkinson wrote in the motion. “The allegations are the (woman) consented to intercourse, but terminated the intercourse after realizing the individual she was having sex with was not her boyfriend.”

The problem, of course, is that the victim consented to intercourse with only one person. Each time every one of us consents to any given sex act, we understand that we are not consenting to that sex act with every single person in the entire world — only our partner(s) at the time. There is no such thing to blanket consent, in the sense that consenting to a sex act one time means consenting to it at all times. It doesn’t. Similarly, consenting to a sex act with one person does not mean consenting to a sex act with all people. Consent is always highly conditional, and based on the conditions set forth. The conditions set forth here were that the alleged victim consented to intercourse with her boyfriend, and not with anyone else.

And if Idaho law recognized that, not only would Atkinson’s argument be irrelevant, but so would the basis for the judge’s dismissal. A rape law which adequately defines what “consent” means would render any specific law about “rape through fraud” obsolete. Such a law would not be necessary, because it would be understood that fraud negates consent, and that the primary conditions present in any sexual consent — what acts and which individuals the consent applies to — were violated. And this fix would affect a much wider variety of cases and negate the current need to predict all kinds of unusual scenarios.

The problem here is not that one specific part of the rape code only applies to married victims, abominable as that may be. It’s that Idaho’s rape statutes are all around inadequate, and don’t account for the many varied forms that sexual violence takes — which includes a whole lot more than force.

Today, the U.S. Supreme Court takes up the issue of prison overcrowding in California — or, specifically, the judicial order that California must release 46,000 inmates from its overcrowded prisons within two years. For those not familiar with this order issued last year, a little bit of background:

At issue is whether the special three-judge court overstepped its legal authority under the federal Prison Litigation Reform Act (PLRA) when it ordered the inmates released.

The 1996 law was enacted to restrict the sweep of judicial oversight in prisoner rights cases. Lawyers for the state of California are arguing that the California-based judges ignored a congressional requirement that judicial orders be closely tied to resolving the specific problem raised in each case.

The release order was issued in a case challenging the adequacy of medical care and mental health services for California inmates. Plaintiffs alleged that medical and mental health services in California prisons were so deficient that they amounted to cruel and unusual punishment in violation of the Constitution’s Eighth Amendment.

The judges determined that chronic overcrowding was a root cause of the poor services and that the quality of treatment would not improve until the prison population was reduced.

California complained that the judges’ order for a large-scale release of inmates usurps the state’s power to run its own prisons and threatens public safety.

I suspect that the state has a really over-inflated sense of just how much the public is being protected by incarcerating the number of individuals they are. They also must have a really poor sense of — or more likely, apathy towards — the number of human rights violations that are being committed in their prisons just generally, let alone because of the extent to which they are currently overcrowded.

The sad truth is that too many people both in California and across the United States will easily believe them and panic over the dangerous hoards that might descend on the innocent, unsuspecting public. But let’s look at some of the facts. Like, for instance, these facts:

Over the past twenty years the State of California has built twenty-one new prisons, added thousands of cells to existing facilities, and increased its inmate population eightfold. Nonviolent offenders have been responsible for most of that increase. The number of drug offenders imprisoned in the state today is more than twice the number of inmates who were imprisoned for all crimes in 1978. California now has the biggest prison system in the Western industrialized world, a system 40 percent bigger than the Federal Bureau of Prisons. The state holds more inmates in its jails and prisons than do France, Great Britain, Germany, Japan, Singapore, and the Netherlands combined.

Did you catch that? The number of drug offenders imprisoned in California is more than twice the number of all offenders imprisoned in California just 30 years ago. California, and the rest of the U.S., isn’t just imprisoning a whole lot more people — it’s imprisoning a whole lot more people on the basis of violating a bullshit, privileged sense of morality, rather than on the basis of actual harm done to other people.

Indeed, while I was unable to find statistics on the number inmates who were convicted on non-violent offenses specifically for California (leave them if you’ve got them!), a study released earlier this year by the Center for Policy and Economic Research found that a whopping 60% of U.S. inmates overall were made up of non-violent offenders, with a quarter of them being non-violent drug offenders.

California is looking at being forced to release only about 30% of its prison population, taking the number down from 156,000 to 110,000 — in a prison system built to hold, it should be noted, only 80,000.

In other words, only non-violent offenders need be released. The system will still be severely overcrowded when they’re done. California, which has been embroiled in an ugly and highly publicized fiscal crisis, would even likely save a good deal of money by following the order. As a result, a number of human rights abuses would be reduced, and lives would most likely be saved. And for that, the state is throwing a temper tantrum.

Which is all to say that I don’t believe for a second that California’s concern is really over “public safety.” After all, the drug war itself has always been more about upholding racist structures and punishing social “deviants” and “undesirables” than actually addressing drug problems — which we know based entirely on the fact that we keep throwing addicts, most often addicts who are also people of color, in prison instead of providing them with treatment and socioeconomic resources.

The concern is about seeing the prison industrial complex undermined — about releasing all of these inmates, not seeing a huge uptick in violent activities, and having the public perhaps realize that there was no good reason for incarceration levels to be so high at all. It’s about the threat of losing control over the state’s marginalized populations, of seeing the coercive power of fear diminished. And yes, it’s about money — because while the budget stands to gain, as many scholars of the prison industrial complex have pointed out (see Angela Davis’ Are Prisons Obsolete? for a start), all of the multinational corporations profiting from the prison system either by selling their goods or using near-slave labor to produce them stand to lose big time. Fewer inmates means fewer workers and fewer forced consumers. Big business, which funds most political campaigns these days, isn’t going to like that.

Now, none of this is to say that I think releasing a bunch of non-violent offenders and completely ignoring them is an ideal solution. It’s far from it. In a much better world, those people would be given the resources they need to improve their lives. While I do not believe drugs to be an inherently bad thing, they can and do harm both individuals and communities. Not all inmates convicted on drug charges have addictions, but a great many do, and they deserve access to treatment for them. They and their communities also deserve the kinds of things that prevent addiction in the first place and assist in preventing relapse — access to education, health care including mental health care, and viable socioeconomic opportunities that don’t merely succeed in perpetuating poverty.

But as far as bad options go, I’d rather see these prisoners released and left alone than continue to be incarcerated. The former leaves them in the usually bad place they started. But the latter, with the likely effects of rape, beatings, constant surveillance, power abuses, denied medical care, and exploitative labor conditions, leaves them a whole lot worse off. It’s time we as a society start acknowledging that. We can and should do a whole lot better to address social problems. But even the inexcusable choice to do nothing is, in a whole lot of cases, better and far less abusive than what we’re doing now.