The Carceral Feminism Of Linda Fairstein

“She prefers rape,” declared the New York Times Magazine in a 1990 profile of Linda Fairstein.

In journalist Katherine Bouton’s profile of the now-infamous Central Park Five prosecutor, Fairstein is a heroine of sex assault victims, spurning homicides—“the aspiration of prosecutors”—for rape cases because “there are victims to be vindicated.”

The headline of the profile, “Linda Fairstein vs. Rape,” suggests that Fairstein was involved in a cause more profound than simply avenging women who have been sexually assaulted. For Bouton, from Fairstein’s perch as the head of the sex crimes unit at the Manhattan district attorney’s office, she was prosecuting the concept of sexual assault itself.

It was a rape case that brought the already prominent Fairstein even more fame—and, much later, infamy. On April 20, 1989, the body of a badly injured jogger named Trisha Meili was discovered in Central Park. Meili survived a brutal sexual assault and beating and within days, five African American and Latinx teens—Antron McCray, Kevin Richardson, Raymond Santana, Korey Wise, and Yusef Salaam—confessed.

But the statements came after nearly 30 hours of interrogations conducted by homicide detectives and Fairstein herself. The actual perpetrator of the assault, Matias Reyes, later confessed to Meili’s rape while while serving a sentence of 33 and a third years to life for raping three women near Central Park and raping and murdering a pregnant woman. In 2002, a judge vacated the young men’s convictions.

Ava DuVernay’s Netflix series about the case, “When They See Us,” was released on May 31 and has already spurred a head-spinning sequence of long-delayed public reckonings  for the prosecutors. To date, more than 200,000 people have signed a Change.org petition calling for retailers to stop selling books by Fairstein, who is now a best-selling crime fiction author. On June 7, Fairstein was dropped by her publisher. On June 12, prosecutor Elizabeth Lederer said she would no longer teach at Columbia Law School.  And a recent New York Magazine feature recounted Reyes’s many victims who “were written out of their own story.”

It’s the nearly 30-year-old New York Times Magazine story about Fairstein, however, that accidentally tells us the most about Fairstein, the culture of true-believer prosecutors, and the profound failings of the criminal legal system. In Bouton’s account, Fairstein is at once a high-flying law enforcement figure toying with the idea of holding high-profile jobs like NYPD commissioner and Manhattan district attorney, as well as a prosecutor avenging rape victims “who spends her days thinking about vile and abominable acts.”

Like the Central Park Five prosecution itself, the profile of Fairstein is imbued with racism and classism. In the opening paragraphs, Bouton contrasted the “suburban born, classically educated, intelligent, impeccably dressed” Fairstein against the people she prosecuted such as “a stocky Hispanic man with a drooping mustache, charged with rape and sexual abuse.”

Even the victims in the piece come off as grim and colorless compared to Fairstein, who is described as residing in a “gracious upper East Side apartment with a panoramic view of the East River and Queens” who spends summer weekends flying to a Martha’s Vineyard home she shares with her husband, and whose life is characterized by such glamour that Bouton is left to breathlessly capture it as a kind of “Sex and the City” set in the criminal legal system:

“The flash and bravado, the elegant wardrobe and ever-blonder hair, the high heels and fancy restaurants….”

Bouton, however, reminded Times readers that there is virtue in the prosecutor’s lavish lifestyle: “they too are perhaps part of coping.”

Bouton’s piece also provides an early glimpse into what is now known as carceral feminism, a philosophy that casts the criminal legal system as a moral entity capable of healing victims and a solution to gender-based violence. As Alison Phipps wrote in a recent essay warning of the carceral perils of #MeToo, such feminists believe that “people are either victims or perpetrators, but not both; the state is protective rather than oppressive; shaming and punishment work.” And in a powerful recent piece on the punitive approach to sex work that Fairstein took during the 1980s, Anne Gray Fischer wrote that she “conferred a feminist legitimacy on … harsh practices of policing, prosecution and imprisonment.”

Carceral feminism found perhaps its purest expression in the effort to recall Judge Aaron Persky for his handling of the Brock Turner case, in which the former Stanford University swimmer received a six-month sentence for a 2015 sexual assault on an unconscious woman. In 2016, Persky was targeted by Stanford law professor Michele Dauber and others for “bend[ing] over backward to award Turner such a light sentence.”  

But I and others believed that the debate over the appropriateness of Turner’s sentence would fail to improve victims’ access to the criminal legal system, threaten judicial independence, frighten judges from showing mercy, and encourage the creation of new, bad laws, all consequences that would disproportionately affect poor and minority people. The carceral feminists won the debate on punishment and Persky: On June 5, 2018, he was recalled by voters in Santa Clara County.

Carceral feminists even have their own presidential candidate: Kamala Harris, a former prosecutor who slammed the Turner sentence and has steeped her campaign in the language of the criminal legal system, most notably her campaign slogan, “Kamala Harris For The People.” Bouton noted that a 1982 television movie about an assistant district attorney prosecuting a rape case called “Farrell for the People” was modeled on Fairstein.

Bouton was also wrong about where the criminal legal system fails victims. “The rapes that don’t get prosecuted, for the most part, are the rapes that don’t get reported,” Bouton wrote. She believed that evidentiary laws limiting prosecutors, such as a New York statute requiring corroboration of not only the identity an assailant but the nature of the attack, prevented justice for sexual assault victims. That law was dropped in 1974, and a June 14 Washington Post piece noted that Fairstein “helped revolutionize certain aspects” of a criminal legal system that disadvantaged victims.

The rape law reforms of the 1970s, which centered on expanding the types of evidence available to prosecutors and limited the same for defense lawyers, may have contributed to an increased rate of conviction. But reform that eases the path for prosecutors in seeking convictions does not necessarily equal justice in a plea bargaining-centered criminal legal system that is far from adversarial or fair, especially for the poor defendants sneered at by Bouton (the “stocky Hispanic man” in the piece was accompanied by a Legal Aid lawyer).

Perhaps more important, sexual assault complaints inconsistently reach prosecutors like Fairstein. When rapes are reported, police too often short-circuit investigations before making any serious attempt to corroborate victims’ claims. Sometimes, police improperly downgrade rape complaints, classifying them as lesser offenses or none at all in official crime statistics. Other times, police classify rape complaints as “unfounded”—meaning a report that was false or did not fit the legal definition of a crime—after doing little or no investigation. Police even omit details from complainants’ statements or refuse to create reports at all.

Such statistical manipulation in rape cases has been documented in cities like Philadelphia, St. Louis, and New York City, where police supervisors ordered street cops to downgrade crimes wherever possible, which led police to misclassify valid rape complaints. Victims have also said police pressured them to sign “withdrawal forms” allowing detectives to close cases as either unfounded or “C-3 Uncooperative Complainant.” In 2018, the NYPD closed nearly 25 percent of 1,965 reported rapes due to alleged non-cooperation by the complainant.

So, tinkering with the back end of the criminal system—whether by changing evidentiary rules, lengthening sentences, or creating registries—has not improved the place in the process where most rape complaints falter: investigation by police. In the decades since Bouton’s article, budgets for law enforcement have ballooned and crime-solving technology, including DNA testing and databanking, has vastly improved. At the same time, however, the percentage of rape cases closed by police fell by nearly half between 1964 and 2017.

Perhaps the most dishonest defenses of the Central Park Five case come not from prosecutors (who while characteristically disinterested in accountability at least acknowledged the injustice) but from the police who investigated it. One officer who arrested two of the teens continues to claim that Kevin Richardson’s confession wasn’t coerced even though he wasn’t present during the interviews of any of the five.

Since the release of “When They See Us,” Fairstein defenders have cited her “decades championing women and trying rapists,” her work to change laws to help sexual assault victims, and her support of charites like the Joyful Heart Foundation, an advocacy organization focused on sexual assault issues. Fairstein and the Joyful Heart Foundation are a perfect match; the group was founded by Mariska Hargitay, a star of “Law and Order: Special Victims Unit,” a show that encapsulates Bouton-style fantasies about law enforcement and has a misguided focus on rape kit “backlogs.”

It can be true that Fairstein prosecuted rapists and raised money for charity, but also helped inflict great trauma on five innocent teens and robbed them of their formative years.

“Linda Fairstein vs. Rape” is also a potent reminder that prosecutors can misunderstand what the criminal legal system can actually do for victims as well as the damage that true believers like Fairstein can wreak. After all, the best the criminal legal system can do is prosecute someone accused of a crime in a legal manner. But the system cannot undo the damage done by victimization, nor will our only solution to harm—human caging—rehabilitate people who have harmed others.

Meaghan Ybos is the co-founder of People for the Enforcement of Rape Laws.