Chapter 4  Law, Gendered Violence, and Justice Critically Engaging #MeToo

Critical Feminist Engagement with #MeToo

We are living in a moment of fourth-wave, digital feminism, defined by its ability to traverse global boundaries, with activists mobilized within networked communities. This wave is largely ridden by young millennial and Generation Z women. A desire to carve out a space for new expressions of online feminist activism characterizes this fourth-wave political project, with social media opening spheres of political participation for young women (Kim and Ringrose 2018). Young feminists are increasingly using social media technologies to develop their feminist identities and employing online platforms to assert themselves in the political landscape (Keller 2016). Online feminist activism can be influential, connective, and contagious in enabling activism offline and leading to material changes. A recent example is the “We Need Consent” campaign created and led by Canadian teenagers Tessa Hill and Lia Valente. This online campaign and petition to challenge rape culture in sexual education curricula was embraced by the Ontario government and used to reform provincial health curriculum in 2015 (Ostroff 2016). Of course, not all e-petitions or hashtag campaigns lead to these types of policy changes, but this is an example of the transformative potential of digital activism in the era of fourth-wave feminism. Feminist activists have used social media to forge global campaigns and connect people around the world, uniting around shared goals of challenging and transforming the sexist cultural norms that continue to contribute to sexual and gender-based violence. The ability to create change, both social and legal, in regard to sexual harassment with the help of digital means is worth serious attention. The most famous example of a movement of this nature is #MeToo.

#MeToo has fuelled the trendiness that was already beginning to surround feminism, with celebrities and politicians embracing the identity and media campaigns calling for individual women to rise up and call out sexism. Yet some scholars have argued that this emphasis on individual action ignores the structural and economic conditions that contribute to sexual and gender-based violence in the first place (Gash and Harding 2018; Rottenberg 2019). As Catherine Rottenberg writes, “Neoliberal feminism helps reify White and class privilege as well as heteronormativity, thereby lending itself to neo-conservative and xenophobic agendas” (42). From its popular emergence on social media as a powerful movement, #MeToo has continued to attract intense media attention, which helps to sustain its visibility. However, what is also clear is that this media attention and sustained visibility is largely held up by white, cis-gendered celebrity women that have come forward (Hannem and Schneider 2022; Rottenberg 2019). According to JoAnn Wypijewski (2020), while sex is a complicated and complex subject, the media coverage of #MeToo put forward one set of stories and one type of explanation about the subject. Wypijewski argues that the dominant discussion of #MeToo has been driven by white, middle-class feminists whose liberal politics do not consider intersecting operations of oppression. This is not to say that the potential of #MeToo necessarily must be limited to this discourse; indeed, one of the strengths of emerging movements and the democratization of feminist engagement is that they open some space for diverse perspectives and outcomes. However, this does not in itself mitigate the continued tendency to position white women and liberal approaches as representative of sex-based discrimination and violence. The individualistic tendencies of the movement that celebrate the me in #MeToo are not successful in creating structural change or making collective political demands for systemic change, “ultimately atomising each person who uses the hashtag” in a process that is symptomatic of liberal and neoliberal feminism (Rottenberg 2019, 45). By failing to centre a structural critique, the movement continues to leave behind those who are often most vulnerable to violence—sexual or otherwise—such as immigrants; migrant workers; domestic workers; low-income, racialized, queer, and sex working women; and non-binary folks.

The original iteration of the #MeToo movement was started by civil rights activist Tarana Burke in 2006. The aim of this grassroots activism was to help and support women and girls (mainly of colour) who had survived sexual violence. Fast-forward eleven years to 2017, and the movement looked very different. On October 15, 2017, after the New York Times (Kantor and Twohey 2017) released a story detailing allegations of sexual abuse against well-known Hollywood producer Harvey Weinstein, actress Alyssa Milano took to Twitter with Burke’s phrase, calling on anyone who had experienced sexual harassment or abuse to use social media and come together under the hashtag (#) “MeToo.” In the tweeting age, Milano’s prominence as a white, wealthy, attractive celebrity was a vehicle to make women’s rights advocacy more palatable and instantly accessible to millions. Milano’s tweet quickly caught on, rapidly reaching other women and being retweeted nearly half a million times over a twenty-four-hour period. #MeToo generated vast media attention as cases picked up across the political spectrum. Headlines about sexual assault and harassment allegations against wealthy men in powerful positions continued to emerge. Harvey Weinstein was charged and, on March 11, 2020, sentenced to twenty-three years in prison for rape and sexual assault.2 After Weinstein was called to account for his sexually violent behaviour in October 2017, it seemed that the flood gates on social media had opened, and over the span of a few months, multiple men in power were making headlines for sexual assault and harassment allegations. #MeToo hypervisibilized the popular trials of powerful men such as Harvey Weinstein, Bill Cosby, Larry Nasar, and Jeffrey Epstein, which captured public attention, served as household entertainment, and became etched into the cultural memory. Nasar pled guilty to twenty counts of first-degree sexual assault against minors and was sentenced to 40–125 years in prison (Barr and Murphy 2018). Epstein was first sentenced for procuring a minor for prostitution but was released on house arrest. He was later charged and convicted of sex trafficking and was sentenced to a New York State jail where he died by suicide (BBC News 2019). Cosby was tried and convicted in 2018 for drugging and sexual assault. While the conviction was initially upheld on appeal, it was overturned in June 2021 by the Pennsylvania Supreme Court. In a move indicative of the fallibility of legal progress in sexual violence cases, the court found that the district attorney had an obligation to honour his predecessor’s promise not to charge Cosby (Dale 2021; for discussion of the trial and media coverage, see Hannem and Schneider 2022). These cases are the tip of the iceberg in the #MeToo movement,3 as many powerful men faced legal action for sexual abuse and workplace sexual harassment.

Prior to the rise of #MeToo, there was the Canadian case of Jian Ghomeshi, a famous media personality whose sexual misconduct was well known within the show business community but who for years was not held accountable for it. In November 2014, Ghomeshi was charged with four counts of sexual assault and one count of overcoming resistance by choking against three complainants. In January 2015, he was charged with an additional three counts of sexual assault, but by May of the same year, two of the charges were dropped by the Crown attorney. The controversial trial ended in Ghomeshi’s acquittal on the remaining five charges as the judge found that the complainants were not credible (Johnston, Coulling, and Kilty 2020). Although the case predated the #MeToo movement and resulted in a verdict that differed from those of Weinstein, Epstein, and others, it nonetheless embodies the typical #MeToo scenario and fuelled public discussion about sexual assault, consent, and carceralism, contributing to a rise in activism against sexual violence (for discussion, see Hannem and Schneider 2022).

The celebrations of convictions in most of these cases can be understood as reaffirming the legitimacy of law in establishing what is a harm. Brenda Cossman notes that the critique around the absence of law coming from feminist commentators is itself “symptomatic of the broader role of law in legal regulation of sexual violence: Law has long been the arbiter of sexual violence both defining harms and deciding whether that harm has occurred. Even in its apparent absence, law is, it is argued, deeply present” (2019, 19). Through this process, harms against certain people are pushed to the forefront and come to characterize sexual violence in our current time. The legal response to Weinstein, Nasar, and Epstein sent a message that no amount of wealth and power can shield sexual predators. The cases that were brought forward and ultimately resulted in convictions relied as much on the identity and credibility of the victims as on the facts. Of the dozens of women levelling accusations against the above-named abusers, only a handful were represented in court based on the details of their particular experiences, the dates of the assaults, and the perceived reliability and consistency of the survivors’ stories. This particular construction and presentation of victimhood legitimizes the experiences of this harm and identifies these acts as violence, in part because they have been committed against someone who fits society’s image of the “ideal victim” of sexual assault: one who is young, vulnerable, and does not inhabit spaces of risk (Gotell 2008). Most of these cases expose sexual assault and harassment against young (mostly white) women. Importantly, many of the victims/survivors in these popular trials were actors, models, directors, Olympic and US gymnasts, high school students, and so on. These young women fit the standards of good victimhood, which, according to Lise Gotell, is “built on exclusions that draw on race and class-based ideologies’” (867). Their abusers were men in positions of power, which facilitated the exploitation and control over the victims/survivors. The sexual assault trials allowed a reaffirmation of the law’s power to define criminality but also victimhood. Through this performance of the law’s power, violence against those who do not fit within the scope of legibility to a tweeting and hashtagging public and who are not positioned as “ideal victims” is invisibilized. The insidious nature of invisibilization serves to hide the countless operations of violence inflicted. Law asserts its power to define harm through the recognition of certain victims and by proceeding with some cases; this selectivity comes to represent the violence that is most meaningful or most egregious to the public. In this process, we see a reassertion of the same hierarchies and exclusions that feminists have drawn attention to for over fifty years.

Historically, where legal advancements in the area of gender-based and sexual violence are concerned, not all women have benefited equally, with poverty, race, sexual orientation, gender-identity, (dis)ability, and age being important factors (Bakht 2012; Crenshaw 1991; Levine and Meiners 2020; Lindberg, Campeau, and Campbell 2012). Changes to sexual assault laws that took place in the 1980s and 1990s failed to challenge cultural narratives of rape. This is particularly so in relation to Black women, who are often depicted as savage, promiscuous, and sexually aggressive (Crenshaw 1991; Irwing 2008; Manatu-Rupert 2000), and Indigenous women, who continue to be characterized by degrading references such as “squaw, Indian princess and sexually available brown woman” (Hunt 2013, 87). Such stereotypes often influence police decision-making around charging and the case-building strategies of defence and Crown attorneys in sexual assault cases (Bakht 2012; Irwing 2008; Lindberg, Campeau, and Campbell 2012). In Canada, Indigenous women are three times more likely to suffer violence when compared with white women and are significantly more likely to be killed (Palmater 2016). Despite the stereotypes insisted on by conservative politicians and lawmakers that this violence is inflicted by Indigenous men, Indigenous women are less likely to be killed by an intimate partner than other women in Canada (ibid.) Consider, for instance, the findings of Human Rights Watch (2013), which documented numerous human rights violations committed against Indigenous women and girls by police in British Columbia, including “young girls pepper-sprayed and Tasered; a 12-year-old girl attacked by a police dog; a 17-year-old punched repeatedly by an officer who had been called to help her; women strip-searched by male officers; and women injured due to excessive force used during arrest.” Human Rights Watch also reported on numerous instances of Royal Canadian Mounted Police (RCMP) officers sexually assaulting Indigenous women and girls. In one such case, officers took a woman outside her town, sexually assaulted her, and threatened to kill her if she told anyone (Human Rights Watch 2013). Letters sent by the Legal Services Board of Nunavut in spring 2020 confirm this, detailing thirty cases of abuse experienced by Inuit women perpetrated by RCMP officers (Rohner 2020).

These abuses are compounded by police failure to protect Indigenous women and girls from other modes of violence. The issue of violence against Indigenous women is severe and systematic enough to meet the threshold of genocide, according to a report by the National Inquiry into Missing and Murdered Indigenous Women and Girls (2019). Law’s refusal to recognize victims it was not formulated to see is perhaps the most damning example of law’s violence: women and girls being disappeared from their communities, raped and killed across the country for decades without a systematic and formal inquiry or intervention, their cases treated as aberrations or the fault of the victims, crimes against them attributed to their “lifestyle” rather than the deeply woven intersections of racism and misogyny predicating violence against them and the continued violence of the law in refusing to see them. For these reasons, racialized women, queer and trans women, sex workers, and single mothers often opt out of reporting abuse in the first place (Levine and Meiners 2020)

Rather than bringing attention to gendered violence as systemic, and patriarchal practices as operating distinctly on different bodies, #MeToo presents a supposed universality contradictorily predicated on individualism. While critiques of unequal gender relations certainly play a central role in many #MeToo discussions, the emphasis on necessary political and cultural changes remains sharply liberal: more regulations, clearer policies, the need to convict bad men, no means no, and so on. Concealed state-based violence that both permits and inflicts harms on women, particularly marginalized women, positions the state and law as being sometimes neglectful but also as holding the possibility for reform and allyship: if more women were in power, if we had better laws, and so on, then sexual violence would cease to be a problem. While #MeToo has led a call to action, shining light on the magnitude of sexual abuse and harassment perpetrated across a myriad of spectrums, there is little evidence to suggest that the movement has meaningfully addressed systemic discrimination based on race, class, gender, and sexuality and the structural, cultural, and material conditions that contribute to the experiences of marginalized women. As noted above, there is glaring evidence that marginalized women continue to experience violence, including that perpetrated by criminal legal actors and the police. Such cases have never been the subject of livestreamed trials, nor can hashtags capture the complexity of colonialism, racism, misogyny, and transphobia intersecting to produce these tragic outcomes. This, in itself, is not an indictment of #MeToo: movements do not have to be all things to all people. It is, however, important to challenge the illegibility of victimhood produced not only by individual violence but by the complicity and refusal of the law to act in response to certain forms of violence, especially when the violence is committed against particular individuals/groups. The explanation for the diversion of media attention toward prominent and famous (American) cases of sexual violence is deceptively simple: Who and what will prompt clicks, and how much ad revenue will this generate? Indigenous, Black, and queer women experiencing brutal violence, often perpetrated by state actors, do not elicit the same attention from the public, in turn giving the law permission to continue to look away. It is not exclusion alone that is the problem here; more law or more legal attention will do little for those who are considered less human within a nation-state predicated on their eradication and continued refusal of rights codified in both national and international law. As we discuss below, if one is not legible as a victim because they are always and already positioned as unworthy of care and support, it is difficult to correct this through applications of laws that were not created in their image (see also Coulthard 2014).

Feminist responses to #MeToo reveal the continued tensions between legal feminists who demand further state intervention to address gendered violence and see criminal law as necessary and critical legal feminists who critique the reliance on the criminal legal system to resolve these problems. The mistrust of law held by critical legal feminists stems from previous attempts to engage with the law to address gendered violence and a general perception that law is a blunt and reactive tool that does little to address the root causes of crime, help address offending behaviours, or support the needs and experiences of survivors (Bernstein 2012, 239; Comack and Balfour 2004; Snider 1990). Furthermore, the criminal legal system negatively impacts already marginalized communities and often creates further harms for survivors (Smart 1989; Taylor 2018). For example, legal amendments made to Canada’s sexual assault laws in the 1980s and 1990s, among other developments, made it possible to charge both men and women with sexual assault, removed the doctrine of recent complaint, and placed limitations on the use of women’s sexual history at trial (Comack and Balfour 2004, 113; Doe 2003). However, these legal amendments have not stopped legal actors, including judges themselves, from violating rape shield provisions (Craig 2018, 2020).4 While few feminists would have anticipated legal reforms to be incorporated into practice without resistance, the degree of abusive comments in sexual assault cases by judges leading to acquittals or reduced sentences has been significant, even in recent years (ibid.).

Yet feminist activism is never a single discrete project, and it is clear that renewed emphasis on the rights of sexual violence survivors has led to at least some accountability outcomes in Canada. For example, in 2016, former Alberta Federal Court justice Robin Camp underwent a disciplinary hearing for comments made to a seventeen-year-old rape survivor normalizing painful sex and blaming her for the assault (Heidenreich 2018). Similarly, an independent review was carried out following statements by Nova Scotia Provincial Court judge Gregory Lenahan regarding drinking and consent during his acquittal of Bassam Al-Rawi for sexual assault (Mulligan and Tattrie 2018). In rejecting the appeal brought by the accused in R. v. Goldfinch (2019),5 in which he had previously successfully argued to have his former sexual relationship with the complainant admitted into evidence, the Supreme Court of Canada released a statement warning judges that rape shield provisions must be upheld (R. v. Goldfinch). Despite these advancements, Lenahan was cleared of wrongdoing (Craig 2020; Mulligan and Tattrie 2018). Camp lost his appeal to remain a judge but won his bid to be reinstated as a practicing lawyer in 2018 (Heidenreich 2018). These outcomes demonstrate that although there is some progress in accountability for legal actors, the project of securing zero tolerance for violations of Criminal Code section 276, “rape shield” provisions, is still far from being complete.

Feminist efforts have seen similar advancements and challenges in relation to laws around intimate partner violence that have undergone a number of changes since the 1980s. For example, in 1982, the federal government implemented a mandatory charging policy making it compulsory for police to charge the perpetrator in every case of intimate partner violence brought to their attention (Johnson and Connors 2017). Similar to the legal changes enacted in relation to sexual assault, this “zero tolerance policy” led to indignation among defence counsel. To subvert the legal changes, defence counsel used intentional tactics to protest what they perceived to be a politically motivated law by creating a distinction between intimate partner violence and “real violence” (Comack and Balfour 2004, 163), thus undermining the severity of the issue. The mandatory charging policy has also been critiqued for assuming that women are a homogenous group with the same needs and issues and failing to take into account factors such as class, race, immigration status, and so on (Crenshaw 1991). For poor women, immigrant women, and racialized women, it is not enough to address gender violence alone; the intersecting forms of oppression that make women vulnerable in the first place—including poverty, racial discrimination in employment, and housing practices—must also be considered and acted upon (1246). For instance, immigrant women are often reluctant to report abuse and leave their abuser due to possible complications with their immigration status and fears of being deported, therefore zero tolerance policies would do very little to help this group of women (ibid.; see also Levine and Meiners 2020).

In light of lessons learned from these and other feminist efforts to engage the law, anti-carceral6 feminists argue that the invitation for state intervention reinforces law’s power, pointing out that the overvisibility of marginalized groups to law has profound negative consequences for poor, racialized, immigrant, and Indigenous ‘folks (Bernstein 2010; Comack and Balfour 2004; Smart 1989; Snider 1990). Anti-carceral feminists have expressed concern over the possibility and, indeed, the likelihood that the contemporary #MeToo movement risks becoming yet another issue to be “solved” through increased intervention of the legal system and the targeting of the usual suspects—racialized and immigrant men (Taylor 2018; Terweil 2019). Recognizing these concerns, we argue that law’s variegated history with gender violence coupled with the silencing effects that the movement has on marginalized voices are important to consider when analyzing the impact of #MeToo. These tensions, which are currently playing out in the #MeToo movement, around the utility of law and how we should or should not dismantle violence against women continue to be unsettled. The contemporary #MeToo movement encompasses a number of socio-legal changes, including evidence of increased reporting, reliance on formal law, legal responses equated with justice, and an emphasis on visibility. These advancements are a victory for some feminist activists; others remain cautious that while increased legal attention to sexual violence may do something important for certain people, it may also contribute to continued lack of visibility to and normalization of other modes and victims of violence, including law’s own violence.

As discussed above, some victims are further silenced through neoliberal responses to sexual violence that encourage individual women to speak up against their abuse. It is also possible that an increased focus on the power of the state to respond to these situations will negatively impact communities that are already overpoliced and overrepresented in the criminal legal system, posing a risk for racialized men in particular. As noted in the introduction to this book, the targeting of racialized men by the criminal legal system is part of a larger trend of slow violence that includes oversurveillance and police violence toward this group of people in the United States and Canada (Davis 2017a, 2017b; Maynard 2017; Alexander 2012; Chan and Chunn 2014; Jeffries 2011; Collins 2004; James 2012; Duru 2004). For example, in 2020, Black Americans made up 13 percent of the total population in the United States and 37.9 percent of the prison population, demonstrating the over representation of Black Americans among prison populations (US Federal Bureau of Prisons 2020). To understand the severity of this, consider that there is now a larger percentage of Black Americans incarcerated in the United States than there was in South Africa “at the height of apartheid” (Alexander 2012, 6). Loïc Wacquant explains that in the United States, the prison system “has been elevated to the rank of main machine for ‘race making,’” where “the massive over-incarceration of Blacks [sic] has supplied a powerful common-sense warrant for ‘using colour as a proxy for dangerousness’” (2002, 56). For these reasons, some Black women choose not to report sexual crimes committed against them by Black men (Crenshaw 1991).

Unlike in the United States, where the racial dynamics of criminal legal engagement with racialized people are well known and widely documented, in Canada, they often remain veiled under the mythology that Canada is multicultural and therefore a tolerant and accepting nation (Cole 2020; Glasbeek, Alam, and Roots 2019; Glasbeek, Alam, and Roots 2020; Maynard 2017). Canadians often define themselves as being in opposition to the explicit racism and discrimination occurring in the United States and elsewhere (Maynard 2017, 3). Yet race-based criminalizing trends tell a different story, as seen in the incarceration of Indigenous groups in Canada (David and Mitchell 2021). According to the Department of Justice in Canada (2019), between 2015 and 2016, Indigenous adults made up around 3 percent of the Canadian population, while Indigenous men accounted for 26 percent of the provincial and territorial male prison population, and Indigenous women made up 38 percent of those admitted to provincial and territorial prisons (see also Chartrand 2019; Balfour 2008). Indigenous people in prisons are also disproportionately overrepresented in maximum security classifications, segregated at higher rates, and more likely to become the subjects of use-of-force interventions, all of which extend their prison terms (Chartrand 2019, 69).

There are also alarming overincarceration rates of Black populations in Canada. According to a 2013 annual report by Canada’s Office of the Correctional Investigator the number of Black inmates in Canada’s federal prisons increased every year, growing by nearly 90 percent between 2003 and 2013 (during the same time period, the number of white inmates actually declined by 3 percent). In 2010–11, for instance, Black Canadians “made up 9.2 % of the federally incarcerated population, an increase of 50 % from 2000” (Warde 2013, 462; Crawford 2011). The overincarceration of racialized people signals a need for caution around any initiative that supports carceral interventions.

Criminal legal pursuit and incarceration of racialized individuals, particularly Black men, is uniquely contentious in relation to sexual crimes, particularly when committed against white women. The narrative of Black men’s sexual desire of white women is one that can be traced back to the Jim Crow era, when it became the avenue for controlling Black men, who were viewed as “prematurely freed from the civilizing influences of slavery” (Collins 2004, 166). The trope of the “Black man as rapist” has functioned in powerful ways to validate racism and the segregation of Black men based on the suggested need to protect white women (Maynard 2017, 41; Walker 2010). After the abolition of slavery in the United States, the practice of lynching appeared as a way to control the Black population and especially to control the Black man’s uncontrollable desire for a white woman (Duru 2004). Lynchings—the illegal hangings, stabbings, shootings, and burnings of most commonly Black men by mobs—were justified by the idea that the recently freed Blacks would become “lawless bands of savages” who needed to be controlled (ibid., 1326) were used to protect white women from the uncontrollable sexuality of the Black man. That most lynching victims had not been accused of sexual assault, but were instead attacked for a myriad of other reasons, had little to do with the need to control “Black man’s mythic sexual savagery” (ibid., 1327).

While Canadians generally tried to avoid the American-style racism associated with lynchings, the trope of Black men’s sexual savagery continued to operate in less overt ways during the nineteenth century. For instance, the need to protect white women was relied upon to justify the continued use of capital punishment as a sentence for rape and to exclude Black people from settlement (Maynard 2017, 41; Walker 2010). As Robyn Maynard contends, “The intensive focus on rape in this era cannot be understood outside of its racial context and should not be mistaken for a genuine societal attempt to end sexual violence against White women (or any women)” (2017, 43). The deployment of the “Black men as rapists” trope continues through the images of the prototypical Black “pimp,” sexual predator (Collins 2004), and most recently, the human trafficker (Roots 2023). The racism embedded within criminal legal institutions is not merely a technical issue of poor training and improperly applied policies and regulations. Rather, the oppression and inequality circulating through these institutions can be read as built into law itself, which derives authority from the threat, veiled or explicit, of legitimately enacting violence. Law has been constructed as a mode of social control and governance aimed at regulating society for select populations rather than as a protective and benevolent force for all (see Sarat and Kearns [1993] 2009).

This history provides us with ample reason to be, at the very least, concerned about the possibility of expanded law enforcement efforts potentially fuelled by the #MeToo movement. Anti-carceral feminists have pointed out that feminist support for punitive policies against sexual and gender-based violence have contributed to increased incarceration (Bumiller 2008; Davis 2003; INCITE! 2001). As Anna Terweil explains, “Feminist prison abolitionists have expressed concern that the #MeToo movement could also have the undesirable effect of increasing support for prisons as ‘solutions’ to sexual violence. Taking sexual violence seriously, they point out, all too often means supporting more or harsher punishments for perpetrators” (2019, 2; Davis 2003). She highlights that these “tough on crime” policies have been passed in order to protect women. Instead of reducing gendered violence, however, such policies result in expanded punishments that affect, first and foremost, racially and economically marginalized people (2). We can identify this as another way that hypervisibilization of certain cases involving white, powerful men and celebrities serve to further invisibilize law’s violence toward racialized folks, in a reiteration of the historical violence discussed in this chapter. While there has been a cultural backlash to #MeToo and a panic around “false” allegations against powerful white men, we have not seen the same level of critical concern about the multitudes of racialized men imprisoned unjustly and/or falsely/mis-accused.

In Canada, there is limited information on the demographics of those accused and convicted in sexual assault cases7—a notable and troubling information gap. In the absence of this data, we can look to the United States for information on who is being charged and convicted of sexual assault. While there are some marked differences in the operation and approach of the US and Canadian legal systems, data from the United States can provide us with some important context on the racialization of sexual assault suspects in North American cultures. For instance, according to the US National Registry for Exonerations, Black people are eight times more likely than white people to be falsely convicted of rape (Gross et al. 2022, iii). African American sexual assault exonerees also received significantly longer sentences compared to their white counterparts and spent on average nearly four-and-a-half years longer in prison before being exonerated. Thus, “it appears that innocent Black sexual assault defendants receive harsher sentences than Whites if they are convicted, and then face greater resistance to exoneration even in cases in which they are ultimately released” (iii). In support of this, research by Daniel Filler (2004) found that Black Americans are disproportionately represented on public sexual offender registries.8 That the overrepresentation of Black people on sexual offender registries and the significant collateral consequences this registration brings are issues that are underresearched in academia and underaddressed in the media and by public officials demonstrates the kind of hyperinvisibilization and slow violence that exists in relation to the criminalization of racialized bodies. Without increased emphasis on this issue, we are concerned that #MeToo will not fundamentally challenge the way carceral violence perpetuates structural racism and indeed risks bolstering it.

In addition to the overwhelming targeting of Black men under sexual violence laws, the limited research that does exist in the Canadian context demonstrates that Indigenous men are also disproportionately targeted for prosecution regarding sexual offences. As Bruckert and Law note, one in four individuals serving sentences in Canadian jails for sexual assault are Indigenous (2018; see also Benoit et al. 2015). This is supported by 2008/2009 data from the Correctional Service of Canada, according to which a significant proportion of Indigenous offenders were serving prison sentences for sexual offences compared with non-Indigenous persons. In contrast to constructions of the Black man as the sexual predator, Indigenous men are seen as perpetrators due to their alcohol abuse and subsequent “tolerance to violence while drunk” (Comack and Balfour 2004, 81). The legacies of colonialism that led to these challenges and constructions have been subverted by neoliberal individualism and the consequent need to protect society from these troubled and violent individuals. #MeToo activists should actively incorporate the practice of decolonization into their advocacy, especially given that not only do Indigenous men face state violence, but Indigenous women face the highest rates of interpersonal violence and are routinely excluded from state protection.

The impact of marginalization on criminal legal outcomes applies to victims and survivors as well as those labelled as perpetrators. When victims and survivors are racialized, queer, and/or work in the sex trade, we routinely see lower sentences for perpetrators. According to Open Society Foundations, “Black defendants who victimize Whites tend to receive more severe sentences than . . . Blacks who victimize other Blacks” (Kansal 2005). In the context of sexual assault convictions in Canada, Bruckert and Law (2018) found that sentences for sexual assault offences are more lenient in cases where the victim is racialized. These cases remind us that legislative changes resulting from #MeToo and other well-intended movements are still operationalized by a criminal legal system embedded in inequality and injustice. They caution us from putting too much faith in the law as an apparatus for systemic change.

Conclusion

Feminist engagement with law has a long and contentious history premised on noble intentions that don’t always lead to as noble of outcomes. Continued feminist efforts to engage the law and the state in order to address gender-specific issues have come under criticism. Here, we see increased recognition that legal change does not always or even often lead to changes in lived experiences. In this chapter, we have relied on the anti-carceral feminist framework to discuss the most recent iteration of these feminist efforts in the form of the #MeToo movement, which has gained significant public attention in recent years. The movement has made a notable impact and led to a number of powerful men being held accountable for their sexually predatory behaviour. And while the #MeToo movement seems different from previous efforts to engage the public on issues of gendered violence through its success in bringing down a number of influential men, caution toward overoptimism should be exercised.

The law has not been constructed to recognize or act on the systemic discrimination woven into the fabric of settler-colonial states, and so action by criminal law can only serve to address individualized harms suffered. The hypervisibilization of a few high-profile cases of sexual assault and harassment does not negate the simultaneous invisibilization of the law’s own violence against racialized people through overincarceration, unjust sentences, the dehumanization of victims, and police violence. These processes instead serve to undermine the transformative potential of movements designed to shine light on violence and abuses of power. For these to be truly effective, law’s own violence must no longer be allowed to operate in the shadows. Through marginalizing law’s authority to determine the nature and legitimacy of harms suffered, space may be opened to consider gendered violence in a historically contextualized and collective way, reorienting violence prevention and redress to community-oriented practices of social justice.

Notes

References