#MeToo and the Failure of Law
By Leigh Goodmark | May 22, 2018
The #MeToo movement has revealed a lot about American society: although the crime rates have generally decreased over the past 30 years, intimate and sexual violence continue to plague the U.S. Some men still clearly feel entitled to treat women as property, their bodies a vehicle for men’s power and pleasure.
For me, the most striking thing about the outpouring of #MeToo stories is that these stories represent thousands and thousands of people who did not pursue legal remedies—people who did not come forward with their experiences of physical and sexual harassment and abuse until a social movement made taking some kind of action seem possible. Despite 40 years of law reform, law has neither changed the cultural acceptability of sexual and intimate partner violence nor deterred that violence in any meaningful way.
Many people still don’t see the legal system as a viable option for addressing violence. The rise of #MeToo is about the failure of the law.
In the 1960s and ‘70s, the U.S. legal system’s response to rape, sexual assault, and other forms of gender-based violence and harassment was anemic. Anti-violence advocates looked to the law to change this culture of violence, believing that robust law enforcement intervention in cases of rape and intimate partner violence (IPV) would do two things. First, it would provide an immediate response; second, over time, it would deter further violence and change cultural norms. Advocates hoped to help victims of sexual harassment, sexual assault, and IPV come forward by creating new crimes, lowering barriers to prosecution, and ensuring that law enforcement would take such cases seriously. They also worked to strengthen workplace regulation of harassment.
Despite these changes, however, reporting rates of rape, sexual assault, and intimate partner violence remain low. Most women probably aren’t reporting work-related sexual harassment either. Whatever deterrent power changes to the law might have had (the evidence on this point is far from clear), low reporting rates of violence and abuse suggest that the law isn’t doing enough to change norms.
Law can’t do the heavy lifting that this cultural moment demands.
Convicting one serial abuser–Bill Cosby–took two trials and almost 15 years. For every conviction like Cosby’s, a hundred or a thousand men who have sexually harassed, sexually assaulted, or physically abused women go unnoticed by the general public. And Cosby’s conviction had significant costs. Andrea Constand, whose charges of rape ultimately led to Bill Cosby’s conviction, had to withstand being called a liar and a con artist. Her lifestyle was judged and her credibility was questioned, over and over again. It’s questionable whether Cosby’s conviction will change norms around violence and abuse. One high-profile prosecution is unlikely to make sexual violence and IPV disappear.
The legal system’s response to violence against women needs work. Both substantive and procedural hurdles make proving sexual harassment, sexual assault, and physical violence challenging. But attempts to address what some see as obvious flaws—like extending the statute of limitations for bringing claims of sexual violence—don’t address the reactive nature of the legal system’s response. Relying on the law to change a culture in which such behavior flourishes is like putting a band-aid on a gaping wound. It’s an after-the-fact remedy that provides justice in a very limited sense and sometimes inflicts further damage on those seeking relief.
Law hasn’t changed the toxic culture of sexual and intimate partner violence that continues to flourish in the United States. And the legal system can’t address situations that are uncomfortable and unpleasant, but not illegal.
It’s time to move away from the law as our primary response to such violence. Instead, we should be exploring alternative approaches to these problems. We should be thinking about prevention and education instead of punishment. Social science evidence, for instance, demonstrates that under- and unemployed men are most likely to commit IPV; addressing economic inequality could do more to prevent violence than any deterrent effects that might result from harsher sentences. Intervening with adolescents through programs like the Coaching Boys into Men curriculum can decrease physical and sexual abuse. Community-level work to change norms around violence will prevent more violence than prosecuting a fraction of those responsible for that violence after the fact. Making #MeToo a thing of the past means stopping sexual and intimate partner violence before it starts.