Movement for Justice protest against the incarceration of women at Yarl's Wood detention centre. Credit: Demotix/Guy Corbishley.
The UK police, courts, the prison system and the entire judicial apparatus transparently and resolutely fail to tackle rape culture. Prisons cannot solve sexual violence while also protecting it.
To call endemic sexual violence 'rape culture' is not just a statement of prevalence, though there are estimated to be up to 95,000 rapes annually. Instead, 'rape culture' is an analysis of how rape, sexual assault and harassment are procedural, and of how the state mechanisms that are supposed to prevent it instead reproduce and reinforce it.
But fears about completely dismantling this system are warranted if there is no transformative alternative to put in its place. What would 'transformative justice' for survivors look like – not simply in communities holding rapists to account, but also a wider redistribution of power that can start to disassemble the structures enabling rape culture?
The current apparatus offers very little in the way of accountability and allaying survivors’ trauma, and nothing in the way of transformation. There is a default presumption that the state, and the police, can deal with rape by locking up individual rapists.
But a 2013 Home Office study suggested only between 1% and 6% of reported rapes are known by the Ministry of Justice to have resulted in the prosecution of the perpetrator. At least a quarter of these reported incidents are classed as ‘no crimes'.
Conversely, as many as 109 women have been prosecuted in the last five years for 'false accusations' of rape. In 2005 the Home Office found the rate of 'false accusations' is dramatically overestimated by “a tendency to conflate false allegations with retractions and withdrawals”; arbitrary police department categorisations inflate 'false reports' from 3% of cases to 8% of cases. Judicial intermediaries' power to prosecute is itself a form of violence: it shifts the focus onto whether or not to ‘believe’ the survivor.
Carceral narratives - those suggesting incarceration can alleviate social problems - may be comforting when comprehending the scale of violence against women. Believing that the justice system means that rape results in a prison sentence gives us the illusion of power and autonomy. (Victoria Law has particularly criticised 'carceral feminism' for believing incarceration can eliminate violence against women).
But within a system of punitive logic, the achievement of any collective or transformative form of justice is impossible for the 99% of survivors who do not see their case result in a conviction. The state has little interest in the resources necessary to incarcerate all perpetrators.
The furore over whether British convicted rapist Ched Evans should be allowed to return to professional football, particularly the reaction to petitions against Oldham Athletic signing him, illustrates the limitations on what 'justice' can be wrung out of the judicial system. Evans is one of the small proportion of alleged rapists who was convicted of rape and sentenced to jail time (the Footy Law blog analyses his 2012 case in detail). The entire public debate, however, has been over whether he has been ‘rehabilitated’ or ‘paid his debt'.
This completely abstracts the impact on the victim, who has been forced to move house five times due to repeated outings by his mob of vigilante supporters.
Prisons “both require and foster violence”, criminology professor Sarah Lamble argues. The entire system of incarceration, from prisons and the police to immigration detention centres, are simply another one of rape culture's functions. In turn, rape and assault provides a perverse stability to the prison system. This further prevents the realisation of transformative justice for survivors.
Often upending the patriarchal violence ingrained within the prison system is considered more disruptive than the violence itself. As Michael Denzel Smith states: “The fact that we do little to enforce those laws is the tacit recognition that in order for the current system to remain intact, a degree of violence against women is necessary”.
What's more, relocating rapists incubates rape culture. Statistics on UK prison rape are more vague than in the US, with Justice Secretary Christ Grayling blocking a Howard League investigation into the issue - the Ministry of Justice says questions about assault are ‘intrusive’. Research suggests guards routinely sexually coerce women prisoners (a third of who are survivors of sexual abuse). There are also revelations of endemic sexual assault and harassment of women detainees at Yarl's Wood immigration detention centre, for example.
In the US, the response to prison rape is to move the victim to ‘protective custody', or solitary confinement. But this is also a tool employed to silence women who report sexual assault by guards. Further, Solitary Watch estimate half of trans women in New York prisons have been sexually assaulted by guards while in solitary confinement.
But showing that prisons are sites of systemic sexual violence does not establish that immediate abolition would lead to quantitatively fewer rapes. The question is then if these carceral functions cannot provide the framework for eliminating rape and assault, what alternative structures can be established?
One option is ‘restorative justice’, involving facilitated meetings between the perpetrator and victim - to enable answers for any questions the victim has of the perpetrator, or acknowledgement of the harm caused. The New Zealand-based Project Restore is prominent in advocating this approach, which stems out of Maori accountability practices. In theory, this might provide some conciliation - equilibrium can be restored to the disrupted families, communities, and networks, if only by having the perpetrator acknowledge fault.
However, even Project Restore concedes the limits of such an approach. It does not, by itself, create conditions that enable safety and resistance to violence and oppression - or provide reparations to victims. Indeed, these projects gained traction within neoliberal approaches seeking cheaper alternatives to incarceration. Even the name, 'restorative’ justice, reveals the limits of its intended effect. Rather than accountability for the victim and recognition of their needs, the peace of communities and families that failed to protect the victim from violence is intended – to restore things as they were.
Another alternative is 'transformative justice', which focuses on developing 'community accountability' structures to disrupt cycles of abuse and assault. This framework has been developed by women of colour-led US groups like INCITE!, Sista II Sista, and Communities Against Rape and Abuse (CARA), who organise against interpersonal and state violence. The idea is that support groups from the community facilitate a process between the victim and the perpetrator, and a process of dialogue and admission of responsibility by the perpetrator then approximates the necessary steps to repair harm. The support groups then monitor whether these steps are maintained.
'Transformative justice' is centred in developing the community's autonomy in order to prevent violence. It sees retribution as reactive, and incarceration as unable and incapable of unpacking more difficult questions about state violence, or the complicity of communal networks that feel obligated to intervene to stop drink driving, for example, but not child abuse.
But a 'transformative' solution cannot simply involve a sentimentalised restorative justice system with a neoliberal renovation i.e. one that prioritises restoring unequal power relations for the sake of 'peace' or expense, or transferring arbitrary judicial functions to communities, assuming this accounts for all of the survivor's needs.
Generation Five, an organisation focusing on transformative justice in cases of child abuse, importantly state: “Without a just world, people cannot find healing and safety.” The primary task in communities and organisations attempting to articulate a response to violence is providing care and support to survivors, including being led by survivors' needs and desires regarding their abusers.
But this has to be integrated with attempts to eradicate the inequities that allow patriarchal violence to occur.
'Transformative justice' is contingent on broader social and personal transformation. Just as prison abolition is only conceivable by shifting resources to healthcare and education systems and removing the violence of poverty, 'transformative justice’ cannot simply depend on the community being inherently more accountable than the courts: it also has to identify the absence of reparations and accountability for the victims - and redistribute power to them.
While consent-based sex education is entrenched in discourse about how to tackle rape culture, and an important first step in beginning a shift towards transformative justice, there must also be a broader realisation of reproductive autonomy to redistribute power - for example abortion on demand, and trans-appropriate healthcare.
A transformative discourse about tackling rape culture would also consider the institutionalised violence of local authority care homes - which feed women and children into the violence of homelessness, addiction, and prisons.
Children's rights are also vital to conceiving social and personal transformation as a means of dismantling rape culture. Children need more than comprehensive sex and relationship education: they also need greater democratic power in schools, and in their lives.
Without the broader empowerment of those vulnerable to patriarchal and sexual violence, transformative justice mechanisms no more provide accountability and reparations for rape survivors than our current carceral apparatus. And community accountability is anemic without addressing the ways in which women, particularly women of colour, women with disabilities and trans women, are trapped by the violence of poverty, or state violence.
In moving beyond a model of incarceration that exacerbates rape culture, transformative justice has to take account of survivors' complex needs. It must ensure community accountability does not simply whitewash the systems that enable patriarchal violence.