What is #MeToo’s legacy? The conventional account currently being indelibly forged into our collective memory is that #MeToo was an unconditional progressive victory. It was a reckoning of the disempowered against the powerful that profoundly challenged sexist culture. This Article complicates and even counters that narrative by shining a light on #MeToo’s dark side, namely, its carceral and neoliberal messages and policy reforms. Although today’s George-Floyd-mindful feminists often describe #MeToo as having nothing to do with criminal law, the reality is that the movement featured familiar tough-on-crime discourses, passionately called for more criminal law and prosecutorial power, and, in fact, produced several new carceral laws and policies. Yet, just hours after famous actor Alyssa Milano sent the tweet heard around the world, Black Twitter revealed that Me Too already existed: Tarana Burke’s “me too movement.” This Me Too centered on survivors’ material and emotional needs, focused on young women of color living in socioeconomic precarity, and embraced noncriminal “transformative justice.” Milano’s #MeToo, by contrast, incorporated popular narratives of criminality, bolstered the legitimacy of the penal state, and relied on traditional notions of sex and gender. And it was Milano’s that became the Me Too. This Article contrasts the two Me Toos to critique the individualistic and punitive #MeToo movement that is and mourn the intersectional and restorative Me Too movement that could have been. #MeToo’s emphasis on sensational stories and social media-derived evidence of “epidemics” effectively cut off debate, enabling carceral reforms to pass at a dizzying pace. This Article is the first to catalogue, describe, and examine the actual criminal laws and policies erected in #MeToo’s name. Even a surface analysis of these reforms reveals that, contrary to advocates’ claims, they do not just close “loopholes.” Instead, each new or broadened criminal law raises troubling issues of civil liberties, defendants’ rights, and state power, and each portends to sweep in people—including women—who bear little resemblance to the unrepentant monstrous offenders featured in #MeToo discourse.
* Professor of Law, USC Gould School of Law. I am grateful to Hadar Dancig-Rosenberg, Itay Ravid, and the editors of the University of Illinois Law School for organizing this symposium, and to Marty Berger, Vincent Chiao, Michelle Dempsey, Sarah Lageson, and David Sklansky for their helpful suggestions.
The full text of this Symposium is available to download as a PDF.