4

Reassessing the Place of Criminal

Law Reform in the Struggle Against
Sexual Violence
A Critique of the Critique of Carceral
Feminism
Lise Gotell

Introduction

Feminist struggles against sexual violence have been identified as

responsible for the development of a ‘law and order’ state form that
constructs women as victims, while further criminalising and disem-
powering the marginalised. In this chapter, I consider the complex
outcomes of sexual assault law reform in light of recent critiques of what
critics have labelled ‘carceral feminism’ (Bernstein, 2007, 2010, 2012;
Bumiller, 2008; Gottschalk, 2008; Halley, 2006; Reece, 2011). While a
broad objective of this book is to think beyond rape law reform, this
task is best accomplished by thinking through law reform as a feminist
strategy. Against those who see feminist movements as complicit in the
regressive politics of the law and order state, I offer a qualified defence
of feminist strategies of law reform.
The first section of the chapter provides an overview of a contempo-
rary backlash to anti-rape feminism and outlines the critique of carceral
feminism. Next, focusing on Canadian campaigns, I demonstrate how
second-wave feminists had a sophisticated analysis of criminalisation.
While critics of carceral feminism contend that feminists wholeheart-
edly embraced criminalisation in their struggles to end sexual violence,
the historical records show that activists appreciated the dangers of
emphasising law reform and insisted on the importance of connecting
legal and extralegal strategies. I argue for renewed attention to some of

53
A. Powell et al. (eds.), Rape Justice
© The Editor(s) 2015
54 Reassessing the Place of Criminal Law Reform

these older political and theoretical insights. In the third section, I chal-
lenge the claim that sexual assault law reform constituted an unqualified
feminist victory. Focusing on the complex implications of an affirmative
consent standard, I demonstrate how changes to the Canadian law have
produced highly contradictory outcomes. In contrast to the instrumen-
talist conception of law that informs the critique of carceral feminism,
I argue for an analytic approach to law reform that appreciates the com-
plex outcomes of earlier struggles, as well as the uneven development
of law. Finally, I highlight the sexual libertarianism and anti-statism
inherent in the critique of carceral feminism. While acknowledging
the dangers of feminist engagements in contemporary law and order
politics, I contend that we cannot simply turn our backs on law. The
absolute rejection of criminalisation strategies might well have the effect
of re-privatising sexual violence, with the inevitable return of impunity
for perpetrators.

Backlash and carceral feminism

Efforts to think through sexual assault law reform must take into con-
sideration the contemporary context of backlash. In the past few years,
counterclaims to anti-rape feminism have proliferated, reconstructing
the story of feminist criminal law reform as regressive and presenting
contemporary feminism as a force of stultifying political correctness.
In newspaper columns and on popular news websites, the concept ‘rape
culture’ has been identified as a feminist-produced moral panic (see, for
example, Kitchens, 2014). Statistical evidence of rape’s pervasiveness has
come under fire, with right-wing commentators casting rape prevalence
research as feminist junk science (see, for example, MacDonald, 2014).
Recreating the narrow category of ‘real rape’ (violent stranger rape), rape
is presented as being rare and, far from being condoned, is acknowl-
edged as a horrific crime. Many of the ‘rape culture as hysteria’ analyses
hone in on the issue of drinking and rape, insisting that the best way
for women to prevent sexual violence is to avoid getting drunk (see, for
example, Wente, 2013). Efforts to respond to the pervasiveness of sexual
violence on university campuses have been condemned as abuses of due
process (MacDonald, 2014).
This vocal resistance shares much with earlier manifestations of
what some have called the anti-anti-rape backlash (Bevaqua, 2000,
p. 181). In the 1990s, amidst feminist-inspired law reform inroads,
post-feminists Camille Paglia (1992) and Katie Roiphe (1994) pushed