On November 14th, Margaret Atwood, Joseph Boyden, and dozens of other celebrated Canadian authors published an open letter to the University of British Columbia. It was an act of protest against the university’s mistreatment of one of their CanLit luminary peers, Steven Galloway, the novelist and former UBC Creative Writing Program chair at the centre of a sex scandal. It’s now known that Galloway had an affair with a middle-aged student in his department, who later accused him of sexual assault; a number of his students also allege that he played favourites, created a sexualized environment, and engaged in horseplay that crossed lines of decorum at the least.
None of these details were available to the public last November, when The Globe and Mail and other major news outlets ran the story that Galloway had been suspended from his job in light of unspecified “serious allegations.” An internal investigation at UBC followed, conducted by a retired provincial Supreme Court judge. Her report found most of the complaints against Galloway, including the sexual assault one, couldn’t be substantiated. Still, whatever was in the report was enough for UBC, and Galloway was fired in June, without severance. There was extensive media coverage, with varying degrees of sympathy for the different parties. Galloway tried to kill himself.
In The Walrus magazine, Margaret Atwood likens the business to the Salem Witch Trials, total reputational annihilation on the basis of whisper campaigns and a guilty-because-accused standard of public judgment. She’s right. Many others on Twitter express concern for the complainants, de-centred in favour of Galloway in the heavyweights’ letter. They’re right. Dorothy Palmer, a union leader and activist, argues on Facebook that the open-letter CanLuminaries are bourgeois stars of the neoliberal gig economy and their weaponizing the media is a form of union-busting: the controversy should be settled through unions’ established protocols, better able to ensure fairness and privacy. In principle, she’s right.
Except the fairness and privacy ship sailed last November, when UBC failed both Galloway and his accusers by allowing his suspension to leak to Canada’s daily newspaper of record and thus to social media. What anybody embedded in the neoliberal gig economy knows is that your union grievance rights are worth shit once your personal brand is dead. Whether you’re a bestselling author or a desperate MFA grad watching your bank balance dwindle (or both), you are your name—or, to be precise, your name’s globally accessible Google search results.
Employment depends on them. Housing may depend on them. Future friendship and romance most certainly depend on them. Someone whose name has been wrecked online must wonder, each time they meet a new person: Do they know the shame my name now holds, and will they abandon me when they find out? To be sure, many victims of sexual assault feel a parallel version of this loneliness when they wonder, each time they meet someone new: Can they tell I’m traumatized, and will they abandon me when they find out? The open-letter-writers may have felt the former horror more acutely. Or they may have felt, as they imply, that Galloway has gotten a rawer deal than the complainants in light of the circumstances that are known. I can’t tell if the CanLuminaries’ demand for a public inquiry into the events is all that coherent; it’s not clear to me that such a thing would benefit the main stakeholders at this point, though unmuzzling Galloway might well benefit his mental health. What I wish is that these exceptional writers had used their collective force of imagination to probe more searchingly the moral, ethical, and legal questions before them.
In The Walrus, for instance, Margaret Atwood decries UBC’s extra-legal management of the accusations against Galloway. Her complaint runs parallel to the frequent criticisms of Title IX policy at American colleges, the federal requirement that any higher-educational institution receiving public funds must have structures in place to address claims of sexual discrimination, a category that now includes sexual abuse and harassment. These extra-legal structures may disadvantage the accused to the extent that, though they have lighter penalties than do criminal courts, Title IX proceedings also have lower evidentiary standards (usually “preponderance of the evidence” rather than “beyond a reasonable doubt”). But Atwood’s proposed alternative —“If it’s a matter of rape then it should be a matter of jail”—is worse.
Obviously it’s worse because of the dysfunctions of the courts, as I mention below, but it’s also worse because of the realities of jail. Too often, jail means rape. Jail means psychological torture. Jail means an exponentially increased risk of contracting AIDS. Jail means physical distance, often considerable, from networks of family and friends who may be able to help broken inmates heal. Jail means an atrophy of vocational purpose. Jail means recidivism, a lot of the time. Jail is a perfect, perfected machine for trauma-production. Jail, to repeat, often enough means rape. In North America, jail is Old Testament eye-for-an-eye vengeance in the guise of New Testament mercy. We call it mercy because we no longer devastate the body of the guilty. We don’t whip the body, disembowel it, break it on the rack: this we call mercy. It’s not. The mind is no less fragile than the body; the mind is not separable from the body; to punish the mind is to punish the body.
I reject the retributive motive for punishment as barbaric, a gratuitous indulgence of our worst primitive instincts. It may be a dark force for social cohesion, as Durkheim says—nothing like a public execution to bring atomized individuals together—but at the expense of plunging the community into what, if the word has any meaning, can only be called sin. I also don’t believe state violence against the human spirit, like incarceration, is typically rehabilitative. Nor do I have much faith in the deterrent rationale for punishment, since if severe and prolific penal sanctions were an effective way to suppress crime, the breathtakingly punitive United States wouldn’t have more people in its correctional system than Stalin’s Gulag did at its peak (apparently the comparison works per capita too). I believe the only reason to put someone in jail is that they’ve shown they’re an absolutely incorrigible danger to others and must be quarantined, i.e. after every other approach to the problem of their broken nature has been tried. I believe they should not even then be given up on. I believe, I believe like a motherfucker, in redemption.
Such a perversely optimistic and functionally anarchistic perspective doesn’t make sex crimes any less wrong, obviously: they still need to be dealt with. I’ve mentioned my feelings about jail as a method of dealing, and I also don’t trust courtroom justice not to be buyable by the rich and otherwise distorted by class, race, gender, and sexual prejudices, or, just as bad, righteous liberal drives to symbolically renounce those prejudices. This means, contra Atwood, I don’t dismiss extra-legal modes of justice. I don’t believe them to be inevitably less just than the official version. But they also can’t be vulgar vigilantism, plain or coded revenge, can’t be institutional processes that reproduce in miniature the violence and injustice of the state system but without its safeguards. They can’t be Kafka, as seems to have been the case with Galloway and UBC. The state’s courts and bureaucracies and the ways they shape consciousness are already Kafka. We don’t need more Kafka.
We do need community processes for restitution. We need private processes, sometimes in living rooms and bars, that nevertheless treat people not as isolated “private” individuals but as members of collectivities. We need restorative justice, offline intervention and mediation. We need the possibility of escalation to other layers of authority, but only when the grassroots options have been exhausted. We need to limit the use of the Internet’s public side for these purposes, to recognize that nuking someone on Google can psychologically, socially, and economically maim that person for life, or for as long as the Internet is structured as it is now, especially if the target happens not to be a billionaire. The belief that this maiming is only fair, since the target allegedly traumatized someone else, is bloodthirsty vigilantism that divides community and hardens faction and should be repudiated. We need to acknowledge that many (most?) of us are in the neoliberal gig economy in one way or another: we inhabit the horrifying truth that brand is life, that we’re dead souls if we’re denied a living face and name.
This isn’t an argument for decriminalizing sexual assault. Legal sanctions are necessary in the worst cases, to protect society from forms of antisocial aggression that it’s simply unable to assimilate. But we should have no illusions that carceral punishment improves the guilty or reshapes sexual norms. Even Catharine MacKinnon, among the most brilliant and persuasive advocates for a criminal justice system that serves sexual assault victims, admits as much: “This is not to say that perpetrators do not deserve incarceration, but rather to say that jail has not tended to change their behavior, and indeed has often entrenched and escalated it.”
One of the usefully sharp edges of second-wave radical feminism, like MacKinnon’s, is its insight that there’s very little hetero fucking in our society—with its power imbalances, its shaming of female desire, its patriarchal norms—that’s free of any hint of exploitation. MacKinnon’s reading of sexual assault as a dark outgrowth of structural gender inequality, in a paper like 2003’s “A Sex Equality Approach to Sexual Assault,” is descriptively accurate. But prescriptively it comes up short. The problem is that if, as MacKinnon says, “until equality exists, not even yes can reliably mean yes”—and fundamentally, this is true—if consent is an insufficient yardstick in part “because women know that sex that women want is the sex men want from women,” there’s no criminal court in the world that’s competent to distinguish with any certainty between coerced and welcomed sexual contact. To judge such matters by participants’ thoughts and desires, rather than by their words and actions, would require an invasion of their inner lives that would be totalitarian were it possible. A jurisprudence that has to rely on presumptions that amount to mind-reading (“yes didn’t really mean yes because her feeling at that moment was…”) represents no road to justice. Its practical consequence can only be to inflict on men the structural disadvantages that the criminal justice system has traditionally inflicted on women. It is, so to speak, no more than structural revenge.
Today most popular campaigns against sexual violation proceed from a feminist framework that’s carceral, authoritarian, and regulatory. Few voices ask, because it feels unsafe to ask, whether such a movement could instead take inspiration from a queer radicalism that’s anarchistic, anti-fascist, and inclusive. Queer radicalism, in the broad sense used by theorists like Eve Kosofsky Sedgwick, is a principled, politicized, sometimes performative transgression of the majority’s sexual norms; it knows of sexual danger and indeterminacy, and it can parse them in revealing ways. Such a perspective may help us acknowledge, for instance, that violation is a subjective experience that may not be perceived by both partners or even correspond to an objective act and may still be traumatic and true. It may help us find some ethical response to women who rightly feel violated by men who rightly feel they did nothing to violate them.
That’s a paradox, but it isn’t a metaphor. At least once in a while, especially with casual sex, it’s a strictly realistic phenomenology of fucking. It points to a need for a sexual ethics that isn’t just pro-affirmative consent but also, more deeply, anti-violation. In practice this means something like not just pressing for a “yes” but also actively enabling a “no.” Again, consent is essential but not enough: it’s possible to gain someone’s explicit, affirmative consent and still leave them feeling violated. As radical queer porn star Conner Habib has pointed out, consent is a liberal concept — “rule with the consent of the governed” — whose historical use has often been to legitimize relationships where the parties hold wildly unequal power, to launder structural coercion with a rhetoric of personal freedom. The basic logic of consent is legalistic and individualistic: you were violated only if your partner broke their end of the contract. Otherwise the violation has no status, didn’t happen, and your hurt is just a fair result of informed risks you chose to take. The logic of anti-violation, by contrast, is compassion: your experience was real, legitimate, and important, regardless of what your partner did or didn’t do to cause it, and regardless of their perception of the situation. It happened, and it matters.
Punishment isn’t what makes the violation real. The violator’s subjective belief in their responsibility for it, or the objective fact of their responsibility for it, isn’t what makes the violation real. The violation is real. Period. As far as I can tell, this attitude is a necessary basis for any sexual life that’s consistent with love and justice. Among its other implications, it transforms violators from sex-entrepreneurs lawyering their high-stakes consent contracts, protesting that they abided by the fine print, to humans taking care of other humans because they were doing something together that was supposed to be about delight and somehow, intolerably, it failed.
Yes, this limits—though it doesn’t erase—violators’ responsibility. It limits the responsibility of both partners. It acknowledges that sexual behaviour, including sexual violation, is a creature of social codes and structures, that individuals are largely the product of their environment and the real target for reform must be that environment, its economics and institutions and culture. It moves us away from a neoliberal vision of the erotic where each of us is a sole proprietor of impropriety: negotiating our contracts, acquiring a portfolio of bedroom experiences, aggregating our freely made decisions, endlessly responsible, self-made. It points us instead toward an emancipatory vision of the erotic, where lovers are bound to each other not just by self-interest but also by a commitment to mutual aid, and where the role of institutions wanes because the educated human heart is radically adequate to the problems it creates.
A friend who’s a rape survivor—several times over, in childhood and adulthood—did me the favour of reading drafts of this essay before I posted it. An activist and writer who addresses sexual assault often in her work, she suffers from PTSD; she does not forgive her attackers, nor does she feel an apology from them would mean much to her. She also doesn’t want them to come to harm, doesn’t wish revenge-rape to befall them in prison. I asked her what, if anything, they could do if they longed to make amends. Is there anything she’d want from them, besides that they leave her alone? She said that more than anything, she would want them to understand how their acts have affected her—it happened, and it mattered—to feel chastened enough that they would never harm anyone else. She would want them to know what she had suffered, and to be changed by the knowledge.
That’s not an outcome typically available in the criminal justice system, where, as the restorative justice movement insists, the stakes are so incredibly high that the accused is focused not first of all on compassion but on sheer self-preservation. Reflection, personal reform, and making amends to victims are related to that process but not structurally central to it. What if there were a middle path between the twin brutalities of the criminal justice system and telling victims just to get over their pain? What if there were lower-stakes processes, offline and in the community, that would let abusers know what effect their actions had, that would negotiate consequences tailored to the situation and the victim’s desires, and that would be backed up by the threat of escalation to the law? This wouldn’t protect against psychopathic outliers, but most sexual violations don’t stem from psychopathy.
We can build informal networks not just for gossip and warning but also for mediation. We can disrupt patterns of harmful behavior in ways that leave the state’s police power as an absolute last resort, the vigilante’s noose out of the question, and names intact. But this requires that we rehabilitate ideas of forgiveness and social reintegration, even—especially—for those we feel are beyond the pale. It means not simply disguising conservative law-and-order politics with liberal hashtags, but opposing those politics as regressive and ineffectual, the road to a carceral dystopia like the prison archipelago of the United States. Freddie deBoer has written a compassionate, uncompromising piece on the tension between progressives’ calls to end the vast prison state and those same folks’ eagerness to smite sexual villains with the brutal machinery of that state. It makes the point that, consistently with justice, you can’t oppose police power as arbitrary, reckless, and vicious in one sphere and appeal to its moral authority in another. The context of deBoer’s extraordinary essay is American, but it’s worth reading wherever you are.
And when someone you know tells you they’ve been harmed, support them. Take care of them if and as they wish to be taken care of; help them get what they need. And when someone you know tells you they’ve been falsely accused, support them. They may be lying or in denial, or they may be telling the truth and their sense of reality has just been shattered. In nearly all cases, you are not morally or practically obliged to pick a side in public.
Alternatively, pick a side in public, dig in your heels, grab what weapons you can: money and connections and media if you’re privileged, other media and a critical mass of voices if you’re not. War is always an option.
But war is war is war, is cruelty, perhaps cleansing, perhaps endless. There are other roads. There are forms of justice not identical to power. I believe there are. There are radical visions of ethically self-governing community, which these moments, as ruptures, may open to us if we can remain nonaligned, resist war, for long enough to see them. They may be hard to put faith in; cynicism has no lack of ammunition. But we need such visions today more than ever.