Eric S. Janus (Mitchell Hamline School of Law) is one of the nation’s most thoughtful scholars as well as litigators. He has has posted an interesting piece entitled Preventing Sexual Violence: Alternatives To Worrying About Recidivism (Marquette Law Review, Vol. 103, No. 3, 2020) on SSRN. Here is the abstract: How can it be that in the era in which almost one million Americans are on sex offender registries — most of whom are publicly stigmatized on websites, banished from their homes, shunned from their jobs, prevented from uniting with their families and traveling internationally, forced into homelessness, all of which increases their risk for suicide, and shames their spouses and children, even if their offenses occurred long in the past — that the #MeToo movement would explode, revealing widespread sexual misconduct against women, by powerful men, protected by iconic institutions? How can we have had three decades of the most aggressive, “spare-no-expense” laws ostensibly designed to prevent sexual violence and, at the same time, observe the widespread failure of law enforcement agencies to take the simple step of analyzing sexual assault kits, as a first step in the investigation of allegations of sexual abuse? How can these phenomena co-exist?
This Article argues that this incongruity is not an ironic coincidence, but rather a flaw that goes to the heart of our contemporary approach to sexual violence prevention.This flaw has, at its core, an almost obsessive focus on recidivistic sexual violence. Understanding this central characteristic will illuminate a framework for an alternative approach to our public policy on sexual violence, one in which the prevention of recidivism plays but a small role in a more comprehensive approach to sexual violence and its place in our culture.
The flaws in the regulatory intervention policies are not an accidental characteristic, but arise from, and in turn support and protect, the very phenomena underlying #MeToo and the SAK revelations: the cultural attitudes, values and practices that allow sexual violence against women to flourish.
Indeed, the thesis is that our aggressive policies are, in a perverse way, designed precisely to protect this aspect of our society — what feminists might call “the patriarchy” — from taking full accountability and responsibility for its role in sexual violence. In this sense, we can say that #MeToo and SAK backlogs persist not in spite of, but in significant measure because of the nature of the aggressive regulatory policies addressed to sexual recidivism