Classing Sex Offenders: How Prosecutors and Defense Attorneys Differentiate Men Accused of Sexual Assault

Published date01 March 2015
Date01 March 2015
Classing Sex Offenders: How Prosecutors and
Defense Attorneys Differentiate Men Accused
of Sexual Assault
Jamie L. Small
As public awareness of and concern about sexual victimization has increased
in recent decades, stigmatization of sex offenders has also increased consider-
ably. Contemporary sex offender policies transform discrete criminal behav-
iors into lifelong social identities. Although there is much debate about the
efficacy and constitutionality of such policies, we know little about how the cat-
egory of “sex offender” is constituted in the first place. In this article, I reveal
how prosecutors and defense attorneys construct sex offenders, not as mons-
terous or racialized as is commonly thought, but as “lower class” men. This
analysis is based on 30 in-depth interviews with prosecutors and defense attor-
neys in Michigan. These legal actors wield disproportionate power in defining
the boundaries of criminal behaviors and individuals. That they associate sex-
ual criminality with lower class men demonstrates yet another way that class-
based inequalities are reproduced in the legal field.
Sexual allegations against Dominique Strauss-Kahn, then head
of the International Monetary Fund and likely contender for the
French presidency, rocked the global political scene in May 2011.
A housekeeper at a Manhattan hotel accused Strauss-Kahn of a
forced sexual interaction. After swift reactions from hotel security
and local authorities, her allegations led to the dramatic appre-
hension of Strauss-Kahn as he sat aboard a jet, just minutes away
from its departure to Paris. Strauss-Kahn was charged with a
criminal sexual act, attempted rape, and unlawful imprisonment,
and he was held in protective custody at the Rikers Island Jail.
Eventually, the judge released Strauss-Kahn on a $1,000,000 bail
The National Science Foundation #1122312 provided support for data collection. Ear-
lier versions of this article were presented at the Law & Society Association Annual Meet-
ing, June 2012, and the American Sociological Association Annual Meeting, August 2012.
The author wishes to thank Elizabeth A. Armstrong, Anna R. Kirkland, Rose Corrigan,
Salik Farooqi, the editors, and three anonymous reviewers for their constructive criticism.
This analysis would not be possible without the generous cooperation of the respondents,
who spoke candidly and thoughtfully about their work as prosecutors and defense attor-
neys. Finally, the author wishes to acknowledge the sexual assault survivors whose experi-
ences are narrated second hand in this analysis.
Please direct all correspondence to Jamie L. Small, University of Michigan 500 South
State Street, Ann Arbor, Michigan, 48109; e-mail:
Law & Society Review, Volume 49, Number 1 (2015)
C2015 Law and Society Association. All rights reserved.
and thereafter he remained under home confinement. Over the
summer, however, the case unraveled primarily due to the prose-
cutor’s questions about the complainant’s credibility. Most damn-
ing, according to the prosecutor, were previous false allegations
of rape she made on her application for asylum in the United
States. In August, the judge dismissed the indictment and
Strauss-Kahn was no longer facing criminal charges and the sub-
sequent stigma of being a sex offender.
This extraordinary case generated much media attention,
confusion, and controversy, precisely because the alleged perpe-
trator did not fit the mold of the stereotypical sex offender. Politi-
cal insiders claimed that it was a conspiracy in which Strauss-
Kahn was framed to eliminate him from the French presidential
race. Feminists and radicals contended that it was a case of
“plantation politics,” alluding to sexualized power dynamics
between master and slave from the 19th century.
French com-
mentators saw it as an example of the barbarism of the American
justice system in which the defendant is defamed by media prior
to trial. Despite the complexities, it is clear that local authorities
took the complainant’s allegations seriously. That these allegations
went as far as they did is remarkable given what we know about
the legal processing of sexual assault in the United States. Despite
widespread rape law reforms that swept the country in the 1970s
and 1980s, research shows that complainants still experience sec-
ondary victimization (Campbell & Raja 1999; Konradi 2007; Pat-
terson 2011; Temkin 2002), attrition rates remain high (Alderden
& Ullman 2012; Caringella-MacDonald 1984; Daly & Bouhours
2010), and public attitudes often blame the victim (Campbell
et al. 2001; Clarke & Lawson 2009; Frese et al. 2004). Given this
context, the Strauss-Kahn case is both remarkable and paradoxi-
cal. On one hand, it is surprising that prosecutors acted as
aggressively as they did due to his privileged class status and the
limited evidence. On the other hand, it is also surprising that the
charges were dismissed so far into the legal process because most
cases that are investigated and charged continue forward (Frazier
& Haney 1996).
The Strauss-Kahn case suggests a complexity in sexual assault
processing that is often overlooked. In focusing on if the reforms
are effective, we miss the more important question of how the
reforms are effective. Legal reforms often have unintended con-
sequences that are different from what original reformers
intended. The case of legal reforms of sex crimes is no different.
110 Classing Sex Offenders
In this article, I investigate how these reforms shaped the atti-
tudes and behaviors of legal actors in Michigan. Findings indicate
that as knowledge about sexual victimization grows more sophisti-
cated, understandings of sexual perpetrators becomes ever nar-
rower. The sex offender category becomes conflated with lower
class identities and cultures. In turn, the process of identifying
sex offenders emerges as yet another way that class-based
inequalities are reproduced in the legal field.
Conceptualizing Perpetrators in Sex Crime Laws
Sexual violence is widely recognized as a serious social prob-
lem (Bevacqua 2000; Chasteen 2001; Cuklanz 1995). State
resources are now routinely deployed to study, prevent, and
criminally process claims of sexual assault (Bumiller 2008; Martin
2005; Matthews 1994). Despite extensive legal mobilization, inci-
dence of sexual assault holds steady, and attrition rates in the
criminal justice process remain high (Lonsway & Archambault
2012; Spohn & Horney 1990; Spohn & Tellis 2012). Scholars
propose many explanations for the lackluster effects of se x crime
legal reforms. First, the investigation and pretrial phases are
demeaning, invasive, and confusing to victims, which compel
them to acquiesce to less-aggressive prosecution strategies (Corri-
gan 2013; Konradi 2010; Maier 2007). Second, cultural stereo-
types about women and people of color permeate prosecutors’
decision-making process (Beichner & Spohn 2005; Frohmann
1997; Taslitz 1999). Third, the criminal justice process silences
and subordinates sex crime victims (Bucher & Manasse 2011;
Konradi 1996; Matoesian 1997). What is missing from these
debates, however, is a serious consideration of the sexual perpe-
trator and his relationship to the social problem of sexual vio-
lence. Since rape law reforms in the late 1970s, scholars and
activists have reconceptualized the rapist: he shifted from a pas-
sionate Rhett Butler-like figure who uncovers the hidden desires
of women to a pathological man who requires extensive surveil-
lance and severe punishment.
Who Are the Perpetrators?
There are three prevailing schools of thought in understand-
ing sexual violence: feminism, psychology, and post-colonialism.
While there are some overlaps in their respective models, these
schools largely conceptualize sexual violence and its perpetrators
differently. First, feminists understand sexual violence as a gen-
dered social problem that reproduces structural inequalities. This
model emerged from the radical feminism which identifies rape
Small 111

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