So clearly, sexual assault and how we discuss it is a big story right now, with the continuing Rolling Stone saga attracting a lot of digital ink and Emily Yoffe’s vast, deeply disturbing reporting about how colleges have investigated rape cases just coming out. It’s a fraught issue in many ways, and demands real care no matter what you’re writing about. I just want to take a quick moment and respond to a particular claim that’s cropped up a lot lately and is emblemized in this Zerlina Maxwell piece arguing that we should presume the accuracy of rape allegations writ large.

Maxwell’s piece is an explicit statement of a social standard that has emerged in progressive and media circles in recent years. The  piece had its headline changed from “we should automatically believe rape claims” to “we should generally believe rape claims,” which does little to change the meaning. I don’t want to go into that standard in full here. I just want to reject one central part of Maxwell’s piece: the notion that there is a strict dividing line between public opinion and our judicial system. In her words, “This is not a legal argument about what standards we should use in the courts; it’s a moral one, about what happens outside the legal system.” This is a sentiment she went on to repeat on Twitter. It’s also a commonplace in these arguments. But I’m afraid it simply is not an accurate picture of our actual judicial system. In real life, public opinion distorts our judicial system constantly.

Take one of the most high-profile of all rape cases, that of the Central Park Five. As the documentary by that name makes clear, public hysteria about the crime directly contributed to the rush to prosecute five poor men of color. How could it not? Police, prosecutors, judges, and assorted others involved in our judicial system are human beings who live in society and consume media the same way all of us do. In New York, at the time, there was a frenzy to punish somebody for the rape and assault of the Central Park jogger. Of course public opinion distorted the process. Or consider the terrible toll of the Satanic sex abuse panic. It seems impossible now, but real live human beings were arrested, tried, and jailed for supposedly carrying out Satan-inspired sexual assaults on children, only to later be exonerated. Spend any time studying those cases and it’s clear that the media and public opinion influenced the cases to an enormous extent, even with accusations from children so wild they included the claim that the accused had used parrots to attack the genitals of the victims. Whatever notion of some unbreakable wall between prosecution and public opinion should be erased right there. Going back further, the Civil Rights acts were necessary in large measure because only federal prosecutions could work, given the enormous public will, among the white majority, agitating against prosecution of civil rights abuses. To look at a history of this country and believe in the idealized wall between public opinion and judicial process is not defensible. No such wall exists.

Or take a more contemporary example: the stunning non-indictment of Darren Wilson for the killing of unarmed teenager Michael Brown. Supporters of Wilson have argued that to succumb to the pressure to charge him for the murder would have been a politicization of the judicial process. Critics of the failure to obtain an indictment have argued that racial politics unduly influenced the grand jury. In either case, people talk plainly about the way that public opinion influences and distorts judicial impartiality. And they are right to do so. Generally speaking, we on the left are the ones who dispute the pleasant-but-false ideals that our country supposedly embraces.

I find it particularly disturbing that, in a country with a long legacy of using spurious claims of sexual aggression as a weapon against  black men, many of those who consider themselves the most committed opponents of racism are endorsing a deeply simplistic and idealistic notion of how the pursuit of justice actually happens in the non-ideal real world we live in. A brief consideration of American history will show you some examples of rape claims that were automatically believed, and the consequences are a terrible stain on our country.

When we talk about carceral feminism, this is what we mean: allowing the great moral duty to oppose rape to allow us to develop credulous attitudes towards the police state. People keep insisting to me that this doesn’t happen, but how can Maxwell’s assumption of a necessarily impartial judicial system, unmoved by public opinion, represent anything else? We’re living through righteous, mass protests of an unchecked, deeply racist police system. That so many are failing to apply that analysis consistently and thoroughly is deeply discouraging. We owe support and attention to the victims of rape. Developing a false credulity to the notion of judicial impartiality does neither them nor the rest of us any favors.