Women’s Studies International Forum 93 (2022) 102614

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Challenging anti-carceral feminism: Criminalisation, justice and

continuum thinking
Clare McGlynn
Durham University, United Kingdom of Great Britain and Northern Ireland

A R T I C L E I N F O A B S T R A C T

Keywords: While anti-carceral feminism – which challenges the use of the criminal law and criminal justice system to tackle
Anti-carceral feminism violence against women – is increasingly dominant, this article builds on an emerging body of work contesting its
Continuum thinking central premises. In particular, this article emphasises that some sexual violence survivors seek criminal justice
Criminalisation
redress and examines the work of feminist organisations both supporting survivors and demanding radical
Kaleidoscopic justice
Transformative justice
change. It argues that some anti-carceral feminism risks reifying existing criminal laws and reproducing sexual
#MeToo violence myths and stereotypes. In doing so, it defends criminalisation of ‘new’ and emerging forms of abuse and
Abolition feminism offers ‘continuum thinking’ (Boyle, 2019) as a way of moving beyond the polarised and binary approaches of
current debates and activism. The aim is to encourage a nuanced, complex approach to the criminal law and
criminalisation which recognises both a role for criminal justice and alternatives; which listens to the voices of all
survivors, including those whose understanding of justice includes criminal justice; and which is fully alive to the
risks and challenges that all justice approaches entail whether state or community based.

In recent years, there has been growing resistance amongst some voluntarism (Masson, 2020), and offers an alternative ‘spectrum of
feminists to the use of the criminal law and criminal justice system to decarceration’ to provide the basis for a more expansive approach to
tackle violence against women. This ‘anti-carceral’ feminist positioning reducing and eliminating violence against women and reliance on
is stated to be in contrast to ‘carceral feminism’, a term first developed to imprisonment (Terwiel, 2020). Common to these critiques is the concern
critique the use of criminal responses to sex trafficking (Bernstein, 2007, that feminist debate and activism has become polarised and binary, with
2012) and now used more generally to refer to ‘decades of feminist anti- approaches being characterised as either carceral or anti-carceral,
violence collaboration with the carceral state or that part of the gov­ leading to the ‘erasure of nuance’ (Masson, 2020).
ernment most associated with the institutions of police, prosecution, This article builds on this growing critique of anti-carceral feminism
courts, and the system of jails, prisons, probation and parole’ (Kim, beginning with an outline of the development of anti-carceral feminism,
2018, 220). Anti-carceral feminism is now playing an increasingly emphasising its roots in feminist abolitionism and its resurgence after
central role in scholarship on, and activism around, violence against the viral #MeToo and #BlackLivesMatter movements. The second sec­
women, gaining strength from both the perceived punitive turn of the tion examines the emerging responses to anti-carceral feminism,
post-2017 #MeToo movement (Cossman, 2021; Gruber, 2020; Kaplan, including the challenge to polarisation and binary thinking, and I
2020; Mack & McCann, 2018) and influence of abolition feminism recommend that ‘continuum thinking’ (Boyle, 2019), embodying
following #BlackLivesMatter (Davis et al., 2022). nuance and complexity, is the best grounding for on-going debates,
While anti-carceral feminism is increasingly dominant, there is now scholarship and activism in this field. The following sections then
a slowly emerging body of work critically engaging with its central develop my critique of anti-carceral feminism.
premises and underlying assumptions. This critical scholarship ques­ Drawing on research with sexual violence survivors into their per­
tions the extension of the carceral critique of sex trafficking to other ceptions of justice, in section three I argue that as some women seek
forms of sexual violence, particularly sexual assault laws (Gotell, 2015), redress through conventional criminal justice systems, we need to
suggests anti-carceral feminism may, inadvertently, evoke neoliberal continue engaging with those processes if we are to fully recognise the
principles and therefore itself risks appropriation within hegemonic experiences and perspectives of all survivors. In this light, in section four
neoconservative and neoliberal projects of privatisation and I examine the activism of a number of predominantly UK-based anti-

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Received 3 August 2021; Received in revised form 4 April 2022; Accepted 24 May 2022
Available online 6 June 2022
0277-5395/© 2022 The Author. Published by Elsevier Ltd. This is an open access article under the CC BY-NC-ND license ([Link]
nc-nd/4.0/).
C. McGlynn Women’s Studies International Forum 93 (2022) 102614

violence feminist organisations, including those working with black and contributed to a shift from ‘gender violence envisioned as a broad social
minoritised women experiencing abuse, who are navigating the chal­ and political problem, to one defined more narrowly as a crime’ (Kim,
lenging terrain of supporting survivors through the criminal justice 2018, 222). The result is that neoliberal governments gain political
system, as well as advocating for radical change. Their work, I argue, advantage through their apparent embrace of feminism (Porter, 2020),
challenges the binaries of carceral/anti-carceral feminism and activism enabling them to effect penal toughness ‘in a benevolent feminist guise’
and embodies the spirit of ‘continuum thinking’ (Boyle, 2019). (Bernstein, 2012, 235). Leigh Goodmark (2018) continues that prefer­
Developing this survivor-led approach, in section five I defend ring a criminal justice response absolves the state from having to
feminist strategies which engage in criminal law reform, including confront the underpinning structural situations which generate the
criminalisation of ‘new’ forms of abuse. I identify the risk that some anti- abuse in the first place. Further, it is not only the problem of mass
carceral feminism reifies the current criminal law and reproduces con­ incarceration of black and minoritised men that has given rise to this
cerning stereotypes and assumptions about sexual violence and its critique, but also the criminalisation of vulnerable women, often also
harms. While defending some forms of criminalisation, in the final sixth black and minoritised, such as through mandatory arrest policies
section I qualify this defence as being based on the ambition to expand regarding domestic abuse (Goodmark, 2015, 2018; Porter, 2020). It is in
conceptions of what constitutes criminal justice, moving away from this overall context, therefore, that Beth Ritchie argues that feminist
punitive, retributive aims, towards more expressive, educative and support for criminal law reform helped to create the ‘prison nation’
rehabilitative approaches. In doing so, I seek to embrace the same spirit (Ritchie, 2012).
of idealism evident in much abolition feminism, focusing in my case on Black feminists and women of colour in particular, therefore, have
radical transformation of criminal justice systems. Ultimately, I argue challenged criminalisation strategies, arguing for greater understanding
that there is a role for criminalisation and the criminal justice system in of the differential impacts on individuals and groups based on the ‘in­
tackling violence against women and girls, as part of a broader move­ tersections’ of race, ethnicity, class, gender and other social categories
ment challenging the conventions and approaches of current criminal (Crenshaw, 1991; Hill Collins, 1997). In particular, the vastly differen­
justice systems, in tandem with developing more innovative and radical tial experiences of black and minoritised women have been documented,
justice and accountability mechanisms. demonstrating the ‘disproportionate vulnerability to violence among
marginalized women’ (Kim, 2018, 224). The intersectionality critique
1. Anti-carceral feminism and the critique of criminalisation also challenges white feminists who have ‘ignored and often exacerbated
the oppressive and violent conditions of women of color in the United
While law can be a powerful mechanism for challenging abuse, it is States’ (Kim, 2018, 224).
also a means of perpetrating harm. The law frequently and continuously These debates regarding the role and value of the criminal law have
fails to meet its loftier ambitions, particularly for women, and specif­ intensified since the resurgence of #MeToo in 2017. While Me Too had
ically black and minoritised communities. The law discriminates, priv­ long been the founding ethos of Tarana Burke's grassroots program
ileges, marginalises and can be an active tool in oppression. Therefore, working with black and minoritised women and girls experiencing
in turning to law, we risk legitimising it, with its masculine bias and sexual violence and which focused on health, welfare and support, the
multiple other forms of oppression. This is why Carol Smart, amongst intensity of the global #MeToo movement after 2017 has raised signif­
others, warned feminists against fixating on law as a main site of icant questions about its role in furthering carceral approaches (Chandra
struggle; stating that in ‘accepting law's terms in order to challenge law, & Erlingsdottir, 2021; Fileborn & Loney-Howes, 2019; Kaplan, 2020).
feminism always concedes too much’ (Smart, 1989, 5). Further, the lure For Aya Gruber, #MeToo ‘reinvigorated’ any declining enthusiasm for
is often to focus on ‘this’ law or ‘that’ change, trying to fit the ‘solution’ law enforcement as ‘much of #MeToo discourse is punitive and carceral’
into pre-existing procedures, languages and frames (Naffine, 1990). (Gruber, 2020, 8–9).
Nancy Fraser expanded this point, arguing that feminist demands can Carceral feminism is also a movement that Angela Davis, Gina Dent,
often be co-opted by neoliberal and populist movements which, in turn, Erica Meiners and Beth Richie describe as being in ‘direct political op­
deflect feminists from seeking genuine economic and systemic redis­ position to abolition feminism’ (Davis et al., 2022, 107). Growing in
tributive resolutions (Fraser, 2012). strength since #BlackLivesMatter, abolition feminism is part of the
While these concerns are true for all law, they are particularly broader prison abolition movement (Davis, 1990, 2013; Davis et al.,
apposite when engaging with the criminal law. Indeed, it is such femi­ 2022; Brown, 2019; Gilmore et al., 2020; Levine & Meiners, 2020), the
nist engagement with the criminal law – and specifically deploying the essence of which is that organising to end ‘gender violence must include
criminal law in challenging violence against women – that has garnered work against the prison industrial complex’ (Davis et al., 2022, 4). Davis
significant opposition in recent years and the development of the anti- et al. discuss how the ‘mainstream anti-violence movement uncritically
carceral feminist critique. This critique comes from those who argue accepted carcerality as the solution to what women of color activists had
that a feminist focus on criminalisation to tackle sexual violence has long argued was a social justice problem for which the state was
been co-opted by a punitive, neo-liberal state seeking to shore itself up partially culpable’ (Davis et al., 2022, 107). Carceral feminism, there­
by utilising feminist arguments for its own ends (2007, 2012; Bumiller, fore, is said to dominate public discourse and legal reforms, ‘despite
2008; Kim, 2018; Gruber, 2020). research that clearly establishes that the carceral regime harms Black
As noted above, Elizabeth Bernstein coined the phrase ‘carceral and other people of color and marginalised groups’ (Davis et al., 2022,
feminism’ (Bernstein, 2007, 2012) in relation to criminal responses to 107).
sex trafficking, identifying the ‘drift from the welfare state to the car­ The extent to which these debates resonate beyond their immediate
ceral state as the enforcement apparatus for feminist goals’ (Bernstein, cultural and jurisdictional locales must be considered, though it is
2007, 143). Now being used more generally, Mimi Kim suggests that difficult to determine. Anti-carceral and abolition feminisms have
‘carceral feminism’ refers to ‘pro-criminalization feminist social move­ developed in the particular US context of exceptionally high levels of
ment strategies’ (Kim, 2018, 221), with others identifying carceral racism and imprisonment of black and other people of colour. None­
feminists' supposed ‘reliance on state-sanctioned punitive justice as a theless, the cultural dominance of US politics and feminist thinking
corrective to sexual violence’ (Mack & McCann, 2018, 331). means that these debates and movements travel widely, resonating in
In charting the rise of so-called ‘carceral feminism’, Kim argues that countries such as the United Kingdom due to similar problems of racism
in seeking to eliminate violence against women, characterising gender and imprisonment (Olufemi, 2020), as well as Australia (Fileborn &
violence as a crime ‘became a rallying point for feminists to fight for Loney-Howes, 2021). Amia Srinivasan reaches the same conclusions as
institutional change and to attempt to gain popular support for what was US anti-carceral feminism and applies this to the global context (Srini­
already becoming a preoccupation with crime’ (Kim, 2018, 222). This vasan, 2021).

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Nonetheless, differences are discernable, including the US focus on responsibilities. Ultimately, Masson calls for a retreat from ‘di­
the ‘campus rape crisis’ (Gruber, 2020, 170) which hinges on very chotomies’, for us all to move beyond the common resort to discursive
different processes to those in other countries including the UK (Cowan ‘polarisation’ and ‘erasure of nuance’, and towards a greater recognition
& Munro, 2021). Similarly, analysis of #MeToo as intensifying carcer­ of the deeply complex nature of the state and criminal logics (Masson,
alism is arguably US-dominated, with the worldwide #MeToo move­ 2020).
ments sparking broader debates including regarding restorative and Lise Gotell (2015) has similarly argued that we need to move past
transformative justice (Chandra & Erlingsdottir, 2021; Peleg-Koriat & criminal law engagements being characterised as ‘always regressive and
Klar-Chalamish, 2020). Nonetheless, while specifics and the level of misguided’ (56) and offers a ‘qualified defence of feminist strategies of
intensity of debate vary, there is a similar essence to feminist debate law reform’ (53). Gotell (2015) focuses on the specific nature of law,
across common law, anglophone countries. While wider European de­ arguing that we need a much more nuanced understanding of it; namely
bates also engage with key questions around criminalisation and the recognising ‘law as a dis-unified field and as a site of struggle over
impact of #MeToo (Burghardt & Steinl, 2021; Wegerstad, 2021), the gender’ (61). In other words, we must guard against any simplistic
political context is considerably different, though sometimes showing assumption that adopting a law is actually a ‘victory’, for penal popu­
worrying moves towards greater punitivism (Andersson & Wegerstad, lism, feminism or whatever group supposedly ‘won’. Law develops un­
2022). evenly, is a site of change, but also of struggle and resistance. In this
way, the law is ‘neither a tool for the realisation of feminist goals’, nor it
2. Responding to anti-carceral feminism: beyond binaries and is responsible for ‘inevitably reproducing forms of domination’ (Gotell,
towards ‘continuum thinking’ 2015, 61). Gotell (2015) provides the example of the introduction of an
affirmative consent standard in Canadian sexual assault laws which
It is difficult to challenge the strength and ambition of abolition produced highly contradictory implications, including the decontextu­
feminism. The extent of racism and the harms of imprisonment are all alising of sexual violence, but it also provided a discursive platform for a
too evident and real, impacting directly on so many people's everyday radical change to victim-blaming narratives (68). In other words, law
lives and futures. Abolition feminism inspires, envisioning a future reform is complicated: not always and inherently negative, or indeed
where oppressions based on race, ethnicity, class, minoritised status, positive.
vulnerability, sex, gender and many other characteristics and positions Underpinning each of these critiques of anti-carceral feminism is the
no longer dominate lives and societies. Thus, in responding to anti- rejection of binaries, challenges to polarisation, and the urge to develop
carceral feminism, I share the approach of Anna Terwiel who iden­ complicated, nuanced understandings of criminal law and criminalisa­
tifies common ambitions across different feminist positions to address tion. This necessary complexity is embodied in what Karen Boyle has
sexual violence, and that the criminal justice system and particularly termed ‘continuum thinking’ (Boyle, 2019). Drawing on Liz Kelly's
imprisonment are sources of violence and injustice (Terwiel, 2020, 422). (1988) concept of the ‘continuum of sexual violence’, which has enabled
Nonetheless, Terwiel eschews the binary choice commonly presented of recognition of the pervasive and interconnected nature of women's ex­
carceral versus anti-carceral feminism, of engaging with the criminal periences of sexual violence, Boyle refers to ‘continuum thinking’ as a
justice system versus developing community-based justice and ‘means of making connections’ (Boyle, 2019, 28) and challenging
accountability mechanisms (Terwiel, 2020, 423). Instead, Terwiel ad­ ‘established binaries’ and dichotomies (Boyle, 2019, 32). Applying this
vocates a ‘spectrum of decarceration’ to encourage a more fluid and in the criminalisation context, Linnea Wegerstad identifies continuum
nuanced understanding of criminalisation and the role of the state thinking as offering an unsettling of the seemingly firmly established
(Terwiel, 2020, 423). boundary of criminal and non-criminal (Wegerstad, 2021). It also offers
In challenging the binary and polarising nature of some anti-carceral an approach beyond a binary choice of criminalisation (bad) and non-
feminism, Terwiel gives the example of Chloe Taylor's work which ob­ criminalisation (good); or describing feminist work in the categories of
jects to all feminist law reform as carceral, including changes to criminal either ‘anti’ or ‘pro’ criminalisation (Kim, 2018). In her analysis of
sexual offence laws, and supports only feminist projects working inde­ ‘feminist wars’ on sexual harm, Brenda Cossman reminds us that
pendently of the law and state (Taylor, 2018; Terwiel, 2020). Efforts to ‘feminist contestation is easily reduced to “either/or”, rather than
reform the criminal law, for example, are assumed to be carceral moves ambivalence, partialities or humilities’ (Cossman, 2021, 115). There­
towards more criminal convictions (Taylor, 2018). As Terwiel notes, fore, I suggest that while we must continue to be alive to law's contra­
there is no space here for ‘progressive engagements with the criminal dictions, unforeseen consequences, and capacity to oppress, marginalise
law’ (Terwiel, 2020, 425). Similarly, Judith Levine and Erica Meiners and exclude, ‘continuum thinking’ may help us to have a more complex
state that ‘anti-violence feminists’ can ‘roughly be divided into two debate on the benefits and harms of criminalisation and the criminal
factions: those who want to put abusers and rapists in prison and those law, as well as options for redress and justice, prioritising non-punitive
who want to abolish prisons and find non punitive, non-violent re­ and non-carceral prevention and education.
sponses to harm’ (Levine & Meiners, 2020, 12). This is unfortunate
phrasing, describing ‘factions’ which suggests an inherent or necessary 3. Seeking criminal justice: sexual violence survivors'
antagonism, as well as a categorisation as either one or the other. perspectives on justice
In also seeking to complicate anti-carceral feminist debates, Amy
Masson (2020) calls for a greater recognition of the deeply complex In debating engagements with the criminal justice system and anti-
nature of the state and criminal strategies. She suggests the need to be carceral strategies, a key focus needs to be survivors' interests and per­
more nuanced in our understanding of neoliberalism, noting that anti- spectives on what forms of redress and accountability they seek. In
carceral feminists themselves risk being co-opted by the forces of neo- particular, while there is a growing body of research demonstrating
conservatism, with its focus on voluntarism within the community, varied and nuanced approaches to what constitutes justice, beyond
and privatisation, hastened in times of austerity (Masson, 2020). In this conventional approaches, this must not obscure the reality that for some
way, the anti-carceral agenda can play into neo-conservative and neo- survivors, criminal justice remains central to their understanding of
liberal debates which valorise community responses to society's ills, ‘justice’. Therefore, an anti-carceral approach that entirely disengages
with little intervention or funding from the state, with the risk of min­ with criminal justice systems does not reflect the perspectives of some
imising the ‘punitive aspects of community’ (Masson, 2020, 73). Argu­ survivors, nor does it support their journeys seeking redress and
ably, the state does have a role and responsibility in targeting and accountability.
eliminating violence in all its forms, and a solely community or volun­ To be clear, a considerable range of recent work has revealed the
tary approach could be seen as relieving the state of such variety and complexity of sexual violence survivors' justice interests.

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There is a growing body of work, for example, investigating the use of reporting abuse to the police, including feelings of betrayal of their
restorative justice processes for domestic and sexual violence (Daly, communities and knowledge of negative experiences, they report that
2006; McGlynn et al., 2012; Ptacek, 2010; Westmarland et al., 2018; some black and minoritised women did so ‘motivated out of a need for
Zinsstag & Keenan, 2017), with the aim of shifting perceptions away justice and protecting other women’ (Thiara & Roy, 2020, 39).
from conventional justice approaches. Further work emphasises trans­ Such motivations also exemplify broader social justice aims for
formative justice processes providing the accountability and vindication engaging with the criminal justice system. Brooks-Hay reports survivors
survivors seek, but without the potentially harmful and traumatising saying they felt they were ‘doing the right thing’ by engaging with the
effects of criminal justice systems (Kim, 2018; Dixon & Lakshmi criminal justice process, aiming to raise awareness and directly chal­
Piepzna-Samarasinha, 2020; Davis et al., 2022; Pali & Canning, 2022). lenge the prevalence of sexual violence (Brooks-Hay, 2020). One sur­
This emphasis on justice as beyond conventional understandings of vivor shared that: ‘I don't have a burning desire to punish him. Punishing
criminal justice is echoed in research with survivors in many different him isn't gonna change what happened to me. What I have is a burning
contexts (Antonsdóttir, 2020; Daly, 2017; Holder, 2015, 2018; Jülich, desire knowing that he's not doing that to other people … I would like to
2006; Keenan, 2014; Zinsstag & Keenan, 2017). know that my voice might help somebody else’ (Brooks-Hay, 2020,
One study examining justice perceptions more generally developed 185). These social justice perspectives resonate with Robyn Holder's
the concept of ‘kaleidoscopic justice’ to explain the varied, nuanced, research where she reports a strong public and community motivation
ever-changing experience and understandings of justice for some sexual by survivors engaging with criminal justice to ensure offender
violence survivors (McGlynn & Westmarland, 2019). This study accountability and recognition of the wrong of violence (Holder, 2018).
involved workshops and interviews with twenty-five women living in Overall, therefore, we need to recognise the totality of survivors'
England who identified as survivors of sexual violence with the aim of interests and perspectives on justice, and we must accept that some of
investigating their perspectives on what constitutes justice. The women these justice interests include criminal justice. Bianca Fileborn and
in this study saw justice as entailing recognition of their harms and Rachel Loney-Howes acknowledge that anti-carceral pledges are
experiences, as including all manner of different consequences for per­ complicated by fact that some survivors do seek a criminal justice
petrators beyond criminal justice systems, as being treated with dignity, response (Fileborn & Loney-Howes, 2021). They argue that abolition
as prevention and education initiatives and as a sense of ‘connectedness’ feminism responds to these arguments by making clear that calls for
to their communities through their support. It echoes research by Robyn abolition are focused on a critique of the system, rather than choices of
Holder similarly emphasising justice as a ‘vibrant experience’ and that individual survivors (Fileborn & Loney-Howes, 2021; Kaba, 2020).
survivors' conceptions of justice are ‘layered, nuanced and contingent’ Certainly, Ejeris Dixon, writing from an abolition feminism perspective,
(Holder, 2015: 195). speaks eloquently of supporting survivors who report to police, recog­
This body of research and practice emphasises justice ideas and ap­ nising that these are not ‘flippant decisions’, and at the same time
proaches beyond conventional criminal justice systems, and therefore building alternatives so there are different options for others (Dixon,
chimes with the anti-carceral feminist approaches discussed above. It 2020).
also provides a vital corrective to the dominance of problematic punitive Fileborn and Loney-Howes also rightly suggest that we must not take
approaches to wrongdoing, as emphasised by the carceral feminist survivors' perspectives ‘wholly uncritically or as always inherently
critique. However, it is important to remember that these perspectives progressive’ (Fileborn & Loney-Howes, 2021). They note that as there
do not represent the totality of survivors' ideas of justice. We have to are so few alternatives, it is no surprise that survivors understand justice
recognise that some survivors do see criminal justice as offering them as via criminal justice systems, since it is so difficult to imagine alter­
some sense of justice and we must incorporate this into our strategies for natives. They quote one survivor from Hayley Clark's study who said:
tackling violence against women. ‘it's very hard to think outside the system when the system is what you've
In the research on kaleidoscopic justice, for example, one survivor got’ (Clark, 2010, 30; Fileborn & Loney-Howes, 2021). This exemplifies
raised the possibility of the death penalty, another castration (McGlynn Julia Downes's argument that the dominance of the criminal legal
& Westmarland, 2019, 187). Another woman contributed that the ‘only imagination can crowd out creative and transformative responses
kind of justice is prison’, adding that this was ‘not for revenge, it's for my (Downes, 2019). In addition, survivors' perspectives will be mediated
own piece of mind that I wanted things put right’ (McGlynn & West­ through their own positions of privilege or marginalisation. In partic­
marland, 2019, 187). In Oona Brooks-Hay's qualitative research with ular, engagement with the state and criminal justice agencies is more
twenty-four women living in Scotland, on why women report sexual likely understood as offering a possibility of justice for those who are
violence to the police, a ‘few’ sought conventional ‘punishment’, with white and of other privileged statuses. The women survivors in both the
one survivor reporting to the police ‘knowing that I wanted him jailed’ kaleidoscopic justice and Brooks-Hay's study were all white, and it is
(Brooks-Hay, 2020, 183). known that black and minoritised women have far greater experiences
Nonetheless, for most other survivors, looking to the criminal justice of injustice when engaging with criminal justice processes (Thiara &
system is more about rehabilitation, prevention of future harm and a Roy, 2020). Nonetheless, the picture is complicated, as the research by
sense of public service and accountability. Returning again to the Imkaan identified (Thiara & Roy, 2020). Listening to the voices of all
kaleidoscopic justice study, for example, while some women did equate survivors presents a complicated picture and one that suggests
justice with criminal justice, they were doing so based on ideas of embracing a range of responses and approaches.
criminal justice as being rooted in re-education, rehabilitation, deter­
rence and therefore prevention. One woman was clear, for example, that 4. Embracing complexity and ‘continuum thinking’ in feminist
‘justice is a guilty conviction’, though she continued that for her the anti-violence activism
conviction was connected to prevention of further harm. Her aim was
‘not to see him rot in prison or anything like that, it was just for it not to Complexity is also reflected in the everyday practices of many anti-
happen again’ (quoted in McGlynn & Westmarland, 2019, 186–187). violence feminist organisations working in the tricky terrain of sup­
These findings are similar to Brooks-Hay's study where even survi­ porting survivors in the criminal justice context, while at the same time
vors seeking conventional punishment linked this to preventing further rejecting its fundamental premises and effects. The following examples
offending (Brooks-Hay, 2020). Similarly, research by the organisation from the United Kingdom are offered as potentially exemplifying ‘con­
Imkaan, which works with black and minoritised women experiencing tinuum thinking’ in this area, where nuance and compromise are
abuse in the UK, identified that some survivors wish to ‘access justice’ embedded in practices seeking to support survivors and ameliorate the
via the criminal justice system and that this is an ‘important objective for worst harms of criminal justice systems, at the same time as demanding
many survivors’ (Thiara & Roy, 2020, 6). Despite the difficulties of fundamental change.

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As with the United States, in the UK there are similar problems of priorities of race and gender by engaging with the police to safeguard
high levels of imprisonment of black and minority ethnic men (Prison women’. She also expresses concerns with some ‘community’ solutions
Reform Trust, 2019), as well as black and minoritised women experi­ because many women come to Southall Black Sisters ‘as a last resort
encing considerable levels of violence, abuse and marginalisation in the when family, community, elders, all the classic instruments of support,
justice system (Imkaan, 2020; Thiara & Gill, 2010; Uhrig, 2016; Sisters have not only failed to remedy the situation but reinforced it’ (Gupta,
for Change, 2017; Thiara & Roy, 2020). Engaging with the criminal law, 2020). Furthermore, she argues, ‘communities cannot be held account­
and criminal justice system, therefore, does raise familiar concerns to able in the same way as the state’ (Gupta, 2020).
those in the US about the potential adverse impacts on marginalised Holding the state accountable is also at the root of larger-scale in­
communities. Therefore, as Day and Gill (2020) argue, an intersectional quiries into violence and abuse, such as the Canadian report of the na­
perspective must recognise that any intervention, such as criminalisa­ tional inquiry into missing and murdered indigenous women and girls
tion, will not be experienced by groups in the same way. Intersectional (National Inquiry, 2019). The inquiry took evidence from hundreds of
scholars, they note, have ‘warned of the dangers associated with main­ survivors and families, embedding indigenous perspectives into its
stream feminism's assumption that all women face a similar risk of practices and final report which called for nothing less than an ‘absolute
gendered violence and, therefore, require the same responses in practice paradigm shift’ (National Inquiry, 2019, 60). In recommending the
and policy terms’ (Day & Gill, 2020, 846). Day and Gill's analysis shifts transformation of all laws, policies and practices impacting on indige­
us away from an anti-carceral feminist analysis which precludes any nous women and girls, the report proposed reforms to the criminal law
interventions or partnerships with criminal justice agencies, towards and criminal justice system, all of which were stated as necessary to fulfil
one which emphasises that it is ‘imperative’ that a critical intersectional the ‘right to justice’ (National Inquiry, 2019). Criminal justice reforms,
analysis is central to the ‘introduction and evaluation of new criminal therefore, were only one small part of the overall approach, but they still
justice policies’ (Day & Gill, 2020, 846). played a role in the conception of ‘justice’ and what was necessary for
In the same spirit, a recent report co-authored by Imkaan, which change.
supports black and minoritised women experiencing violence and abuse, What we can see in these examples is critical engagement with cur­
and other feminist organisations into the ‘decriminalisation of rape’, rent systems, while at the same time being clear about the need for
called for nothing less than the ‘transformation of the criminal justice radical and transformative reforms. In other words, multiple approaches
system’ (Centre for Women's Justice et al., 2020). The report detailed are simultaneously required (Thiara & Roy, 2020). This means that
both the failings of the criminal justice system and made specific rec­ recognising that racism, as well as class, gender, age and immigration
ommendations to institute radical reform (Centre for Women's Justice status, are key factors in how the criminal justice system responds to
et al., 2020). This followed from an earlier Imkaan report on the expe­ sexual violence, need not lead inexorably to disengaging with that
riences and perspectives of minoritised women regarding the criminal problematic system. At the very same time, these reports and studies are
justice process, providing a devastating critique of the injustices of the clear that criminal justice systems have systemic problems and are
current criminal justice system and reform proposals (Thiara & Roy, responsible for retraumatising survivors and causing considerable
2020). harms. The emphasis is resolutely on sustainable resourcing for support
While engaging with the criminal justice system and reform pro­ services and development of redress approaches beyond the criminal
cesses, at the same time, in the same reports, Imkaan and others are clear justice system, including civil law and community-based resolutions; but
that any interaction with the criminal justice system must be understood not to the exclusion of seeking transformation of criminal justice systems
in the context of ‘institutional racism’, the ‘over-policing’ of black and or supporting survivors in their specific searches for justice. This
minority ethnic communities and the specific disadvantages and complexity and ‘continuum’ approach is reflected in some abolition
discrimination facing black and minoritised women in the criminal feminism, with Davis et al. (2022) stating that their intersectional
justice context (Thiara & Roy, 2020, 6). Further, it is noted that the approach embraces a ‘both/and perspective moving beyond binary
‘challenges posed by gender-based violence for the criminal justice either/or logic’ (3). They explain this may mean, for example, sup­
system’ require a ‘deeper understanding of the wide-ranging and inter­ porting survivors while holding perpetrators accountable, mobilizing in
secting and structural inequalities that drive it’ (Centre for Women's outrage against rape and rejecting increased policing (Davis et al., 2022,
Justice et al., 2020, 9). Indeed, in reality, the ‘criminal justice system can 3). It is to be hoped that this recognition of the need to move beyond
itself reproduce the very violence it seeks to address’ (Centre for binaries, and the need to embrace complexity, is extended to all those
Women's Justice et al., 2020, 58). engaging in work to end violence against women.
As well as recommendations for reforming the criminal justice sys­
tem, these reports note the ‘renewed calls for a social justice and 5. Defending law reform and the criminalisation of ‘new’ harms
community-based approach to violence against women and girls from
black and minoritised communities’ (Centre for Women's Justice et al., Thus far, I have suggested that while anti-carceral feminism is rightly
2020, 58). Similarly, in response to UK Government proposals to concerned with the harms of criminal justice systems, an approach
enhance criminal justice responses to domestic abuse, Imkaan together which both engages with the criminal justice system, at the same time as
with other feminist organisations, advocated a shift from such an seeking radical change, may better meet some survivors' interests. This
approach towards the sustained and significant resourcing of support could be an argument about supporting survivors at this time, while still
services and the ‘importance of a response embedded in prevention, pursuing an overall strategy of decarceration. In that way, it would
provision and protection in a holistic way’ (Imkaan, 2018, 7). chime with some abolition feminists who support reforms that move
Such holistic approaches may necessitate shorter-term engagements towards abolition, such as eliminating the death penalty and reducing
with criminal justice. Rahila Gupta, for example, has written that while prison sentences (Cossman, 2021, 176). Similarly, Fileborn and Loney-
the police are not an effective response to violence against women and Howes argue that it is an ‘ethical imperative’ to mitigate the harms
that ultimately solutions to patriarchy need to be found, ‘meanwhile caused to survivors by the criminal justice system, as many do report to
there are women who are being beaten, killed and need support to police, though with the caveat, ‘provided that these reforms do not
escape violent men; often police intervention is needed’ (Gupta, 2020). expand carceral logics’ (Fileborn & Loney-Howes, 2021). The challenge
Gupta writes that the UK organisation Southall Black Sisters, which has here is the balance between what might constitute changes that ‘miti­
been supporting black and minoritised women experiencing violence for gate harms’ and what contributes to ‘carceral logics’. Improvements to
decades, has been doing ‘intersectionality differently’, working with the police or prosecutorial practices that make investigations more effective,
police where necessary, but holding them to account where possible swifter, and more understanding of survivors' trauma, are changes that
(Gupta, 2020). She notes that they ‘negotiate the minefield of conflicting are advocated to mitigate harms of the current system, but are also

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aimed at reducing case attrition and may result in more convictions. It is and deepfake pornography (taking and/or distributing altered sexual
not clear where the boundaries lie. images without consent).
However, my argument also challenges more central aspects of anti- In each area, new laws have commonly been adopted following high-
carceral feminism, particularly the objection to criminalising emerging profile campaigns, often with survivors speaking out and sharing their
forms of abuse. I also suggest that in being so determined to resist law experiences of devastating and sometimes life-threatening harms. While
reform, some anti-carceral feminism reifies deeply problematic as­ Tanya Serisier (2018) suggests that the ability to ‘speak out’ relies on
sumptions about existing criminal law categories, as well as reinforcing ‘dominant narratives of race and class’ (90), and that the privileged
concerning myths and assumptions about sexual violence. For example, speaking out play into ‘real rape’ narratives and the ‘carceral horizon’
Aya Gruber expresses concern with feminists who are ‘punitive’ about that ultimately reinforce existing stereotypes and oppressions (Serisier,
‘gendered offences, even minor ones like over-the-clothes sexual con­ 2018, 89), it might also be that speaking out about emerging forms of
tact’ (Gruber 2020, 5). She discusses sexual offences in terms of the abuse, such as intimate image abuse, challenges ‘real rape’ stereotypes,
‘extreme’ of ‘violent rape’ to the ‘seemingly mundane (wolf-whistling revealing the myriad ways in which women experience abuse, including
and overenthusiastic hugging)’ (Gruber 2020, 8); she also refers to online and via emerging technologies. While many such campaigns have
‘forcible rape’ (Gruber 2020, 11). In terms of criminalisation, Gruber led to criminal law changes, the anti-carceral feminist response is that
suggests #MeToo has called for the criminalisation of ‘workplace sex, there are other ways of recognising the harms and challenging these
sexting, non-consensual pornography, clandestine condom removal behaviours, and indeed it is vital that legal changes are accompanied by
(“stealthing”), emotionally coercive relationships, and the list goes on’ broader preventative and educative initiatives.
(Gruber 2020, 197). She continues that to ‘seriously criminalize any one What is less clear though is why women who have experienced on­
of these would have far-reaching’ adverse effects (Gruber 2020, 197). line abuse such as intimate image abuse are not entitled to have their
She then characterises these behaviours as ‘bad internet behaviour, and views considered, or their abuses criminalised providing one option for
problematic relationships’ (Gruber 2020, 197) and calls on us to ‘chal­ redress, but any woman whose experience is already a criminal offence,
lenge the instinct that calling for criminalization is the only way to ex­ perhaps a physical sexual assault which has long been considered
press disapproval of such misconduct’ (Gruber 2020, 197). criminal conduct, can seek redress through the criminal justice system.
There are many concerns with these statements and approach to The privileging of existing criminal offences and harms risks reinforcing
criminalisation debates. There is a conflation of consensual (sexting) and current criminal law categories and conventions which fail to under­
non-consensual (non-consensual pornography) activity which is con­ stand and recognise women's experiences, and how abuse has evolved,
cerning and surprising. There is the minimisation of behaviours that can particularly with new technology (McGlynn & Johnson, 2021). Intimate
be seriously harmful, including being life-threatening, such as non- image abuse is just one example of emerging forms of abuse that are
consensual pornography and coercive abuse, reduced to ‘bad internet’ slowly being recognised, with survivors and others seeking criminal
behaviour and ‘bad’ relationships. Even if criminalisation is not the redress. Another is the growing awareness of the abuse involved in many
answer (and there is particular debate on this issue regarding coercive obstetric procedures, including unauthorised intimate examinations,
control (see for example Walklate & Fitz-Gibbon, 2021)), to minimise it experiences which have also been met with calls for criminal laws to be
in this way is deeply problematic and does no service to women who clarified and enforced (Pickles, 2020). Reform in these contexts ad­
have experienced such abuses and shared their experiences. dresses a form of hermeneutical injustice faced by survivors whose ex­
Not only does this approach minimise the abuse many women periences are not recognised (Fricker, 2007; Giladi, 2018); where
experience, but it also suggests a worrying hierarchy of harms. ‘Forcible’ victim-survivors struggle to be understood in a society where violence
rape is worse than other forms of rape; physical domestic abuse is worse against women is trivialised and minimised, and therefore struggle to
and more serious than ‘emotionally coercive’ relationships; ‘over-the- understand, narrate and name what has happened to them.
clothes’ unwanted touching is ‘minor’. What is troubling is that these These debates over creating new criminal offences emphasise that
assumptions themselves reproduce some of the very tropes that femi­ existing categories of criminal law were not designed with women's
nists have been challenging for decades in seeking greater understand­ experiences of harm to the fore. Therefore, while the anti-carceral
ing of violence against women. They also run counter to understandings feminist rejection of criminalisation chimes with similar concerns
of women's experiences of violence as being on a ‘continuum’, a concept about ‘over-criminalisation’ (Husak, 2008) more generally, what is
developed by Liz Kelly (1988) to explain the inter-relationships between neglected is that society has tended to ‘under-criminalise’ harms pri­
different forms of sexual violence and to challenge the notion of a hi­ marily experienced by women (Franks, 2017, 1305). Another example is
erarchy of sexual offences. Her predominant concern was to provide the that many forms of harassment are criminalised, generally those tradi­
conceptual tools by which women's experiences of men's violence could tionally associated with the public sphere, rather than the more per­
be better understood, as they were (and still are) not reflected in the sonal, targeted harassment such as forms of online abuse, predominantly
‘legal codes or analytic categories’ of existing research (Kelly, 1988, 74). experienced by women. Therefore, while the criminal law does already
Gruber's (2020) approach reproduces and solidifies existing categories address some forms of harassment, the question becomes whether the
and criminal codes, entrenching assumptions and approaches which current myopic coverage should remain, or whether an understanding
have been the subject of sustained critique for decades. that better reflects some women's experiences is preferable.
As well as reproducing stereotypes and a hierarchy of harms, Gruber Therefore, while anti-carceral feminism is seeking to reduce harm
says that she is asking feminists to ‘adopt an unconditional stance and violence by disengaging with the state and criminal justice systems,
against criminalization, no matter the issue’ (Gruber 2020, 197) and it risks reifying the criminal law status quo, without opportunity for
that feminists ‘should not propose new substantive offenses or higher change or reform. It risks setting in stone historical, often highly ste­
sentences for existing gender crimes’ (Gruber 2020, 18). If we take a reotypical, assumptions about the nature and extent of sexual violence.
concrete example, the clear implication of Gruber's analysis is that the And it does not explain why some survivors are able and entitled to
non-consensual sharing of sexual images should not be criminalised. In pursue redress through criminal justice systems, but not those who
recent years, most states in the US (where Gruber's analysis is focused) experience ‘newer’ forms of abuse.
have introduced laws criminalising some forms of this conduct, as part
of a global movement that recognises the potentially serious harms of 6. Transforming criminal justice practices and outcomes
such abuse (Eaton & McGlynn, 2020; Franks, 2017). Similar laws have
been introduced across the world, in this field as well as other forms of While defending some criminalisation efforts, my argument is also
online abuse including taking images without consent up women's skirts based on reimagining the implications of criminalisation, shifting away
(‘upskirting’), cyberflashing (distributing penis images without consent) from conventional understandings of punishment. In essence, this is an

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argument about breaking the bind between criminal law and punitivism. criminalisation which recognises both a role for criminal justice and
As Dianne Martin has argued, we must shift discourse and policy away alternatives; which listens to the voices of all survivors, including those
from the dominant approach which ‘equates recognition of harm with whose understanding of justice includes criminal justice; and which is
the length of a prison sentence’ (Martin, 1998: 170). The effect of this fully alive to the risks and challenges that all justice approaches entail,
approach is that ‘criminal justice responses which are not punitive are whether state or community based. It is an approach that would benefit
seen to be unresponsive to victims’/women's harms' (Martin, 1998, from embracing ‘continuum thinking’, embedding ambiguity, nuance
170). Similarly, Alan Norrie (2005) writes of the problem of the assumed and complexity in all debates and strategies. This is a call to imagine a
‘penal equation’ which requires that ‘crime plus responsibility equals future where criminal law might be one part of a more holistic approach
punishment’ (75). The argument is that crime plus responsibility need to violence against women; a criminal justice system that is not predi­
not lead inexorably towards punishment, but can be about recognition, cated on punitivism and punishment, but rehabilitation and account­
prevention and a variety of alternative consequences (McGlynn & ability, and where incarceration is not synonymous with
Westmarland, 2019). This echoes Lise Gotell (2015) who talks of the criminalisation. Radical transformation of criminal justice systems may
need to combine a critical analysis of criminal law with ‘renewed not be soon coming, but can be imagined, and in supporting survivors'
attention to diverse extra-legal strategies that would re-politicise the kaleidoscopic visions of justice, we can work towards that goal.
problem of sexual assault and offer alternative responses’ (67). This is
because ‘feminists have pursued law reform strategies to gain recogni­ Acknowledgements
tion of the harms caused by sexual assault, not to punish and incarcerate
perpetrators’ (Gotell, 2015, 69). This is echoed by Mary Ann Franks The ideas put forward in this article benefited from supportive and
(2017) who writes that criminalisation is ‘not synonymous with incar­ engaging discussions at the workshop The #MeToo Movement and its
ceration, and incarceration is not synonymous with mandatory mini­ Aftermath organised by the Faculty of Law, Lund University in
mums or lengthy sentences’ (1302). In specific terms, this would mean September 2021. I would particularly like to thank Ulrika Andersson,
criminalising particular conduct - signalling the wrongdoing, harm and Linnea Wegerstad, Lena Karlsson and Lise Gotell for their valuable
need for redress - but without that redress inevitably being carceral, comments. My thanks are also due to Fiona Vera-Gray for her insightful
punitive punishment. discussions on this topic which have shaped my approach and argu­
Criminalisation and criminal justice, therefore, does not preclude ments. Finally, I would like to thank the two anonymous referees for
alternatives to carceral punishment (Terwiel, 2020). Indeed, recognising their encouraging and valuable comments on an earlier version of this
the justice interests of survivors of sexual violence requires us to engage article.
with a whole range of ‘consequences’ for perpetrating harm, particularly This research is funded in part by a grant from the Marianne and
non-punitive responses and forms of redress (McGlynn & Westmarland, Marcus Wallenberg Foundation entitled The #MeToo Momentum and its
2019; Daly, 2014; Herman, 2005; Holder, 2015). This may entail greater Aftermath: Digital Justice Seeking and Societal and Legal Responses (Pro­
use of rehabilitative programs, educative initiatives, community-based fessor Ulrika Andersson, Lund University, PI).
outcomes (Cossman, 2021). It might include, for example, restorative
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