Volume 57

Can You Be a Feminist and a Criminal Defense Lawyer?

by Abbe Smith

Young people in the current cultural generation seem to like the word “literally.” They use it often and with great feeling, though not necessarily accurately. Law students will exclaim, for example, that the length of reading assignments is “liter-ally killing them.” Young public defenders will complain that judges and prosecutors  are  “literally  driving  them  crazy.”  My  son  sometimes  claims  that  he  is “literally  starving  to  death.”  I  can’t  help  replying  to  each,  “Well,  maybe  not literally.” But the answer to the question I pose in this Essay is literally self-evident, for I am both a feminist and a criminal defense lawyer. I have been both of these things for more than thirty years. So yes, of course, one can be a feminist and a criminal defense lawyer: here I am. Moreover, I have answered this question many times in nearly everything I have written since becoming a law professor. Both my scholarly and more popular writing are from the experience and perspective of a feminist criminal defense lawyer.

The fact that I am a feminist is interwoven into the way I practice criminal law and how I think about it.

It would be  nice to  end  this project  here.  Pithy  legal  scholarship  is virtually unheard of in the twenty-first century. But the question about feminism and criminal defense seems to keep coming up, lately with new urgency because of heightened awareness about sexual assault.

Consider, for example, the renewed media focus on Hillary Clinton’s representation of an alleged child rapist in Arkansas in 1975 in the lead-up to the 2016 presidential election. Commentators wondered how Clinton, who had dedicated much of her professional life to advocating for women and children, could have defended such a criminal. A meme about the case, in which Clinton is said to have “volunteered” to “free” a rapist she “knew . . . was guilty” and then “laughed about it,” went viral, even though these claims were false. The truth was that Clinton was appointed  to  represent  an  indigent  criminal  defendant  accused  of  child  rape (though whether she volunteered or was appointed should be of no moment), litigated the case well, and obtained a favorable plea.

The Clinton kerfuffle was mere foreshadowing. A year later came the seismic cultural shift of the #MeToo movement against sexual assault and harassment. Fueled by multiple sexual abuse allegations against Hollywood producer Harvey Weinstein in  2017  and  similar  allegations  against  other  celebrities  soon  thereafter, women who had been abused by powerful men—often in secrecy, protected by others, with the  men  seemingly  immune  from  consequences—were  suddenly  bringing  them down. It was miraculous and empowering, and the sides were clearly drawn: either stand by your sisters at this crucial cultural moment or defend the bad guys.

Many  feminists  seemed  to  embrace  the  credo  of  the  #MeToo  movement: “Believe Women,” no matter what. As New Yorker writer Jane Mayer notes, now that  “women’s  accusations  of  sexual  discrimination  and  harassment  are  finally being taken seriously, after years of belittlement and dismissal,” some find it “offensive” to even “subject accusers to scrutiny.” Apparently, if you are a #MeToo supporter, every allegation of sexual assault is true.

This is especially troubling in a criminal context. Even when the stakes are at their highest, not only must we stand by all women accusers, not question their accounts, and never take a man’s word over a woman’s, but apparently we must regard every purported instance of sexual abuse as equally heinous and equally worthy of the harshest criminal punishment. Hence, according to the #MeToo view embraced by many feminists, neither due process nor the principle of proportionality applies to sex cases.

In this Essay, I will not talk about the importance of defending factually innocent men criminally accused of sexual assault. This should not be controversial for anyone, feminist or not. Nor will I discuss the long and ugly history of black men being falsely accused of rape in this country, usually by white women. The vestiges of Jim Crow persist; race and rape have always been deeply intertwined in our criminal legal system and ought to be of concern to all lawyers and non- lawyers, feminist or not.

Instead, I will try to identify and address the hard questions for feminist criminal defense lawyers today, in both theory and practice. I focus on sex cases because these cases seem to provoke the most conflict for young feminists. In so doing, I first discuss the obligations of feminism in a time of over-criminalization and mass incarceration, as well as the obligations of criminal defenders in a time of heightened awareness about sexual assault and sexual violence, and how to reconcile these things. I then use two cases—the Brock Turner (Stanford swimmer case) and a more typical case not in the public eye (involving an African American man serving a lengthy sentence for rape)—in order to make more concrete how a feminist defender might think about these kinds of cases.

As I note above, this Essay is in many ways what I have been writing about my entire academic career. It is the “feminist subset” of the Cocktail Party Question: How Can You Represent Those People? It is also an exhortation to young feminists contemplating a career in criminal law to become defenders rather than prosecutors, and perhaps a little vindication for those feminist defenders who have been doing the work for years. More and more women seem to be entering law school interested in criminal defense, and many public defender offices are nearing equal  numbers  of  men and  women. I  wanted  to  give  these  women  defenders something that explicitly answers this question.

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