A Series of Bad Choices: An Interview with Ayelet Waldman

Ayelet Waldman is an author, prison abolitionist, and the editor of Inside This Place, Not of It: Narratives from Women’s Prisons. Prior to her writing career, she was a federal public defender and an adjunct professor at the UC Berkeley law school, where she taught about the legal implications of the War on Drugs.

Her most recent piece for The Atlantic is titled, “Should I Help Incarcerate the Man Who Tried to Sexually Assault Me?

Amanda Knox

What was your goal in writing this piece?

Ayelet Waldman  

My goal in writing that piece was to help illuminate the complexity of police, reimagining the police in the context of what is the most frightening to women. There’s this notion that somehow we need the police to protect us from sexual assault, particularly to white women, and I wanted to dig into the idea that somehow the police are a bulwark against the threat of sexual assault for women. I knew even before I started writing that there were going to be Trump talking points and ads that were going to try to prey on white women’s fears of sexual assault, and on urban legends of sexual assault by black men. And I really wanted to interrogate that and talk about why we need to reimagine community safety, not despite the ubiquity of sexual assault, but because of it. 

Amanda Knox  

Yeah, I mean, I was just reading my voter’s pamphlet this morning, and obviously watched the debate when it went down, and it really does seem that the Trump talking point for reelection is the “left doesn’t believe in law enforcement and the safety of our communities.” Fear monger, fear monger, fear monger. But it is true that, for a long time, there has been a really cozy relationship between law enforcement and victims rights activists?

Ayelet Waldman  

Well, in many senses, victim rights advocates are part of that law enforcement structure. There are offices for victims rights within the courthouse, and they really do function as part of the whole criminal justice infrastructure. Here’s the thing. The police don’t keep us safe. They don’t solve the crime of rape. In fact, very, very few rapists are caught by police. I mean, first of all, we have the problem that relatively few sexual assaults are reported, and there are lots of complex reasons for that. But even when they’re reported, women are constantly confronted with their rapes not being taken seriously, with their rape kits going unprocessed, with police failing to investigate, with police dropping the cases. What happened to me was a textbook example of what the police can do right. They caught the guy right away, the detective assigned to my case was a woman who was very well versed in sexual assault investigative techniques and was very compassionate. In fact, she had actually seen the show that I was part of, created for Netflix, called Unbelievable, which was about a young woman who gets raped and then prosecuted for filing a false report despite the fact that she was the first victim of a serial rapist who went on to rape many more women. There’s this mythology that the police protect us from sexual assault, but in fact, they don’t. I mean, they did a great job investigating in my case, but when I think about who protected me, it was my five foot tall, 19-year old daughter who came running into my room and got the guy and dragged him out, threw him down the stairs. Now, of course, the police couldn’t be there. They don’t stand by your bed protecting you. But this notion we have that somehow the police are the thin blue line between us and a tsunami of rape and other sexual assaults is just ludicrous. 

Amanda Knox  

One thing that I thought your piece did an excellent job in doing was showing the trauma that victims experience in the wake of their assaults, not only as they’re struggling to process what happened, but also when they are confronted with having to weigh a bunch of legal options, all of which seem like a series of bad decisions. 

Ayelet Waldman  

Right. Bad choices.

Amanda Knox  

Yeah, bad choices. 

Ayelet Waldman

So the first choice you have is call the police or not call the police. I called the police right away, and they caught the guy, which was great, but it was not inevitable. So that was one part of the decision. Then I had to decide whether to prosecute, and because I don’t believe in the carceral system, which makes me unusual in terms of victims of sexual assault, I craved an alternative. I wished I had a decision to make that wasn’t just prosecute, don’t prosecute, that would allow me the sense of security and confidence that he was not going to do this to anybody else, while at the same time not engaging this punitive system. But because that wasn’t open to me, I ended up choosing between two bad choices. One, just let him be out there potentially harming someone else, or two, go forward in our traditional criminal justice system. And so I chose the latter. And then there was another choice. What do you, as the victim, support him being charged with? Now ultimately, of course, the decision is up to the district attorney. But they do take victims’ desires into account, which is actually a good thing. So I had to decide, do I press forward and insist that the sexual assault claim be filed, that charge would have been breaking and entering for the purpose of committing a sexual assault, and would expose him to a very, very long sentence? Or do I tell them it’s fine to drop the sexual assault element and allow him to plead guilty to a lesser offense, which would expose him to somewhere between two and four years of incarceration? In America, we’ve lost our sense of what is a reasonable prison term. We expect people to be locked up for nonviolent drug offenses for 20 years, so we have this notion that somehow two to four years is nothing, it’s a breeze, it’s a walk in the park, and we have these hideously abusive prisons. I chose to not insist that the sexual assault claim be charged, because I don’t believe in these long sentences, because I think prison in general is futile and useless. I would much rather he received treatment and, if he was resistant to treatment, excluded from the community, but not in this hideous and punitive way. But I was choosing between two terrible choices. So I chose what I perceived as the lesser of two evils. 

Amanda Knox  

I definitely understand that impulse, and I think a lot of victims are faced with that impulse. And what’s really sad about that choice was you were having to choose whether or not the sexual assault got actually legally recognized. Because for you, the punishment was unfair, you’re like, “Well, how can I make it more fair? Do I have to be the one that has to do the sacrificing in order for this to be fair?”

Ayelet Waldman 

That’s such a good point. Because a fair system would acknowledge the harm. I had a hard time acknowledging the harm. I tried a million different ways to convince myself that him touching my naked body wasn’t sexual assault, until I finally was like, “Oh, yeah.” A system that allowed me to both be compassionate and concerned, and to keep in mind the possibility that members of my community might be put in danger, and at the same time allowed me to be fair, isn’t that what we would all want? But that’s not the system we have in America. We have this grotesquely punitive system that is both punitive and cruel and vindictive and ineffectual. 

Amanda Knox 

Yeah.

Ayelet Waldman 

I mean, if you’re going to be awful, at least be good at it.

Amanda Knox 

Right, right, at least be effective in your cruelty, instead of just being criminogenic. 

Ayelet Waldman

Exactly.

Amanda Knox  

I’m sure, as an abolitionist, you’re familiar with a lot of the proposed abolitionist alternatives, including restorative justice models and community accountability models. Do you have an idea of what exactly could have taken place to have made you feel like not only was the harm acknowledged, but that you were satisfied that justice was done and that the public safety was being met?

Ayelet Waldman  

The best thing that could have happened in this situation was if there was a forum in which I could tell my story, he could tell his story. Because everybody has a story. He would be compelled to listen to my story and take responsibility. And if he couldn’t take responsibility, because he, say, had a mental illness, then he could receive treatment for that mental illness that would be effective treatment, that would be fair treatment, that wouldn’t be just warehousing him in some prison type institution which just makes people worse, that would put him in a position so that eventually, hopefully, we could have that mediated discussion in which he was given the opportunity to take responsibility for his actions, which will then allow me to be the one who could forgive. And I think that kind of system is transformative not just for the perpetrator, but also for the victim.

Amanda Knox 

A lot of people don’t believe in that kind of system, because we find it so hard to imagine that someone who has committed a harm would, of their own will, take responsibility. We have this idea that if you’ve done the harm, you’re a bad person, so why would you ever take responsibility? We’ve set up a system that doesn’t incentivize people to take responsibility. In fact, we have a system that actively incentivizes people to not take responsibility, because it is so strictly punitive. Do you agree that, if we had a less punitive system, people would be more incentivized to acknowledge harm that they’ve done?

Ayelet Waldman 

Oh, I absolutely do. There is, as you say, a perverse incentive. Here’s a great example. Title IX. So the way that Title IX works, if someone files Title IX charges against you, if you allege that, “No, wait, we were both drunk,” then that’s considered retaliation and is itself a second offense under Title IX. So let’s say two kids go out, they get drunk, as is so often in college, they hook up. If you wake up hungover from that incident, you’re incentivized to run and file charges, because the first person to the courthouse wins. 

Amanda Knox 

Wow. 

Ayelet Waldman 

And then we have these incidents on campus where we have a plague of sexual assault. A true plague. And these pseudo courts, where no justice is done, not for the victims and not for the perpetrators. If you read Peggy Orenstein’s book about boys and sex, she talks about this one incredible incident. This remarkable young woman was assaulted by this young man, but chose a restorative justice model to both educate him about what he did and give her the confidence that he wouldn’t do it again, but more the sense that he had acknowledged the harm. This young woman didn’t need him to be expelled, she didn’t even need to never be able to go to college, she didn’t need him never to get a job again. What she wanted was her harm acknowledged, and the confidence that that harm wouldn’t reoccur. She wanted to help him grow. Now, not all victims are going to feel that same sense of confidence and security. But she did. And that story is really remarkable to me. And I feel like we can have a restorative justice model for all kinds of different offenses. And there are pedophiles who are never going to stop pedophiling, right? And we can have a system that provides what treatment is possible and also precludes them from re-entering society, if necessary, as long as the situation in which they spend their lives was pleasant, for lack of a better word. But that’s a very, very rare incidence. I think the vast majority of people can, if given the right circumstances, be helped to understand their actions and the consequences of those actions. And also, if you don’t acknowledge the systemic reasons that people commit crimes, the systemic poverty, the pressures on parents that preclude them from parenting adequately, the terrible inequalities in our system that don’t give people educational opportunity, if you don’t recognize and do something about that, you can’t actually do anything about crime. But if you work with individuals, if you do work with systems, then your crime rate will plummet, and they will be very few and far between offenders that cannot be brought to a place where they acknowledge and accept responsibility for their actions. I really do believe that.