Young people in the current cultural generation seem to like the word \u201cliterally.\u201d 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 \u201cliter-ally killing them.\u201d Young public defenders will complain that judges and prosecutors\u00a0 are\u00a0 \u201cliterally\u00a0 driving\u00a0 them\u00a0 crazy.\u201d\u00a0 My\u00a0 son\u00a0 sometimes\u00a0 claims\u00a0 that\u00a0 he\u00a0 is \u201cliterally\u00a0 starving\u00a0 to\u00a0 death.\u201d\u00a0 I\u00a0 can\u2019t\u00a0 help\u00a0 replying\u00a0 to\u00a0 each,\u00a0 \u201cWell,\u00a0 maybe\u00a0 not literally.\u201d 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.<\/p>\n
The fact that I am a feminist is interwoven into the way I practice criminal law and how I think about it.<\/p>\n
It would be\u00a0 nice to\u00a0 end\u00a0 this project\u00a0 here.\u00a0 Pithy\u00a0 legal\u00a0 scholarship\u00a0 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.<\/p>\n
Consider, for example, the renewed media focus on Hillary Clinton\u2019s 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 \u201cvolunteered\u201d to \u201cfree\u201d a rapist she \u201cknew . . . was guilty\u201d and then \u201claughed about it,\u201d went viral, even though these claims were false. The truth was that Clinton was appointed\u00a0 to\u00a0 represent\u00a0 an\u00a0 indigent\u00a0 criminal\u00a0 defendant\u00a0 accused\u00a0 of\u00a0 child\u00a0 rape (though whether she volunteered or was appointed should be of no moment), litigated the case well, and obtained a favorable plea.<\/p>\n
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\u00a0 2017\u00a0 and\u00a0 similar\u00a0 allegations\u00a0 against\u00a0 other\u00a0 celebrities\u00a0 soon\u00a0 thereafter, women who had been abused by powerful men\u2014often in secrecy, protected by others, with the\u00a0 men\u00a0 seemingly\u00a0 immune\u00a0 from\u00a0 consequences\u2014were\u00a0 suddenly\u00a0 bringing\u00a0 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.<\/p>\n
Many\u00a0 feminists\u00a0 seemed\u00a0 to\u00a0 embrace\u00a0 the\u00a0 credo\u00a0 of\u00a0 the\u00a0 #MeToo\u00a0 movement: \u201cBelieve Women,\u201d no matter what. As New Yorker writer Jane Mayer notes, now that\u00a0 \u201cwomen\u2019s\u00a0 accusations\u00a0 of\u00a0 sexual\u00a0 discrimination\u00a0 and\u00a0 harassment\u00a0 are\u00a0 finally being taken seriously, after years of belittlement and dismissal,\u201d some find it \u201coffensive\u201d to even \u201csubject accusers to scrutiny.\u201d Apparently, if you are a #MeToo supporter, every allegation of sexual assault is true.<\/p>\n
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\u2019s word over a woman\u2019s, 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.<\/p>\n
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.<\/p>\n
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\u2014the 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)\u2014in order to make more concrete how a feminist defender might think about these kinds of cases.<\/p>\n
As I note above, this Essay is in many ways what I have been writing about my entire academic career. It is the \u201cfeminist subset\u201d 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\u00a0 numbers\u00a0 of\u00a0 men\u00a0and\u00a0 women. I\u00a0 wanted\u00a0 to\u00a0 give\u00a0 these\u00a0 women\u00a0 defenders something that explicitly answers this question.<\/p>\n