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

• Published date: 01 March 2015
• DOI: http://doi.org/10.1111/lasr.12126
• Date: 01 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: jalsmall@umich.edu.

Law & Society Review, Volume 49, Number 1 (2015)

V

C2015 Law and Society Association. All rights reserved.

109

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.

1

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.

1

http://www.guardian.co.uk/world/2011/aug/23/dominique-strauss-kahn-charges-

dropped

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