At the time, Fairstein was popularly celebrated as a “law enforcement hero,” and Glamour magazine named her “Woman of the Year” in 1993. But in the intervening years, Fairstein’s legacy as a champion of women’s protection has been tarnished. Contemporary audiences are increasingly recognizing that Fairstein perpetuated a long 20th-century American legal tradition of violently punishing black and Latino men in the name of the protection of white womanhood. (Fairstein still contends that the exonerated five were guilty of other crimes in Central Park that night, and has repeatedly criticized DuVernay’s film in recent days.)
This debate about the racial and gender dynamics fueling Fairstein’s law enforcement work, however, is incomplete. A closer study of Fairstein’s career reveals that her efforts to deploy law enforcement to protect women did not only disproportionately harm men of color — they also harmed women.
Fairstein was a staunch defender of laws that punished women uniquely vulnerable to violence and sexual assault: women profiled as sex workers. Throughout the 1980s, Fairstein argued that more policing and incarceration of sexually profiled women was necessary for their own protection. Speaking from her considerable national platform, Fairstein contributed a distinct feminist justification for the mass policing and incarceration of women of color, who currently make up the fastest-growing prison population.
When Fairstein became head of the Manhattan sex crimes unit in 1976, her boss, District Attorney Robert Morgenthau, was embroiled in a court battle to win a new law against “loitering with intent to commit prostitution.” Since the Supreme Court had struck down vagrancy laws as overbroad and prone to discriminatory enforcement in 1972, cities had tested workaround laws that would restore police officers’ power to arrest women they deemed sexually suspicious.
In 1976, lawyers for Toni Smith, the defendant challenging the loitering law, protested that it gave police officers “virtually unfettered discretion ... and thereby encourages arbitrary and discriminatory enforcement.” Despite a lower-court reversal, the state high court sided with New York prosecutors and upheld the police power to exercise broad discretion in arresting women and removing them from city streets.
This loitering law — still on the books and overwhelmingly enforced against cisgender and trans women of color (though a recent lawsuit compelled the New York Police Department to change its practices) — served as one of the key mechanisms for a major spike in New York prostitution-related arrests through the 1980s. In 1975, there were 6,000 prostitution-related cases in the New York criminal system. Ten years later, in 1985, there were 16,000 cases. This surge in arrests reflected a broader trend in New York police practices: In the same decade, overall misdemeanor arrests rose by 87 percent.
As these statistics indicate, the loitering law was a major weapon in the New York Police Department’s growing arsenal to implement “broken windows” or “zero tolerance” policing. Criminologists George Kelling and James Q. Wilson popularized the theory of broken windows policing in 1982. To protect urban safety and order, they argued, police should remove “disreputable or obstreperous or unpredictable people” from city streets through the aggressive enforcement of low-level misdemeanors.
Armed with these justifications and new laws like New York’s loitering law, police reclaimed the power to engage in the otherwise unconstitutional practice of status policing — in other words, police regained the authority to decide who was “disreputable” and whose physical presence in the city could be branded as criminal “loitering.” This drove a campaign of mass misdemeanor arrests that targeted predominantly poor people of color for loitering, panhandling, disorderly conduct and other “public order” crimes.
Within this context, sexually profiled women were singled out as major threats to urban order that proved the need for punitive low-level policing. New York Mayor Abe Beame praised the loitering law as a “major weapon in ridding our streets of the unruly, often violent, prostitutes who have so blighted midtown Manhattan and other areas of the city.”
Fairstein’s career shows us how compatible broken-windows policing was with a specific brand of law-and-order feminism that took root in the late 1970s and 1980s. Women who worked as law enforcement authorities — especially those who, like Fairstein, built their careers as anti-rape advocates — conferred a feminist legitimacy on these harsh practices of policing, prosecution and imprisonment.
In 1985 and 1986, roughly a decade after the loitering law was passed, the New York State Bar Association held hearings to investigate the enforcement of the law and to consider less punishing alternatives. At the hearings, Fairstein repeatedly invoked the degradation of women who engaged in sex work to justify punitive law enforcement. Sex work, she argued, was “a very un-feminist activity” which had a negative impact “on women as a group.” For this reason, Fairstein was “in favor of the laws governing prostitution.”
But even as Fairstein defended the laws that criminalized sexually profiled women, she decried the “terrible vulnerability of the prostitute.” “The greatest victim of the crime [is] the prostitute herself,” Fairstein argued.
Fairstein was certainly correct that sexually profiled women were deeply vulnerable to violence. Throughout the 1980s, they were terrorized by a wave of serial murders nationwide. And as Gloria Lockett, a black activist and former sex worker, testified at the same State Bar Association hearings, “In this country, the most serious and pressing problem prostitutes have is violence including rape, battery and murder by customers ... police officers ... and pimps.” But to protect women from what Fairstein characterized as the “almost inevitably” violent conditions of sex work, she pushed for ever-tougher laws targeting sexually profiled women, aggressively enforced under this banner of women’s protection. For example, Fairstein took the opportunity of the State Bar Association hearings to stump for District Attorney Morgenthau’s proposed law for a mandatory jail sentence for women convicted twice of prostitution-related offenses.
The intensifying heat on sexually profiled women raised a problem that Fairstein herself recognized: When women were assaulted by civilian men, they would “routinely lie” to the police (or they would simply not go to the police) “for fear law enforcement officials will ... charge them with drug possession, solicitation, or other crimes.” The solution, as Fairstein saw it, was for police and prosecutors to “win the trust of the woman.” How could Fairstein hope to “win the trust” of the same women she was trying to lock up in jail? Despite this clear and unresolved problem, Fairstein maintained that more policing and more jail time was the appropriate solution to the “terrible vulnerability” of sexually profiled women.
Fairstein was certainly not alone in developing her program of law-and-order feminism, or what is also called “carceral feminism.” The 1994 passage of the Violence Against Women Act (VAWA), which inaugurated mandatory arrests in domestic violence calls that often led to the arrest of survivors as well as aggressors, was a culmination of this work. The architects of VAWA shared Fairstein’s logic: that the expanded interventions of weaponized police and retributive courts would make women safer.
Fairstein’s high-profile career — from her ongoing campaign to incarcerate sexually profiled women to her efforts to criminalize five teenagers of color — highlights the racially charged, punitive engine that drives law enforcement work on behalf of women’s protection. Ultimately, in both cases, Fairstein’s prosecutorial work endangered the dignity and freedom of both men and women of color. When prosecutors, police officers and other law enforcement authorities mobilize women’s safety to justify their work, this history urges us to ask: Who is being protected, and who is being punished?