It used to be drug dealers, mostly black and Hispanic drug dealers because, well, Tony Montana. They were hated, dreaded and any act that was linked to them had to be quashed with the harshest of measures. And people were fine with that, because they were the devils of the day. But today is a new day, and we now have progressive prosecutors who are filled with empathy and want to end mass incarceration. Almost. Meet Natasha Irving, feminist prosecutor.

What Does It Mean to Be a Feminist Prosecutor?

Reformers want to keep more people out of prison and punish more people for sexual violence.

This description isn’t merely internally contradictory, but less than accurate. They want to keep more people of a certain identity out of prison. They want to punish more people of another identity more.

Prosecutors have discretion in determining whom to charge, and through the power of plea bargaining, they control how much prison time most people who are convicted will serve. Today, a new generation of progressive prosecutors is trying to use that discretion to help right historical wrongs. That can mean being less punitive to rein in mass incarceration—but it can also mean aggressively prosecuting gender-based crimes to combat patriarchal bias. Are these two goals in conflict?

Prosecutorial discretion has been reinvented, like so many other things, straying from individualized assessments of circumstances, evidence, guilt and harm, to broad policy choices where prosecutors get to decide what laws they feel like applying and what laws they don’t. Legislators enact laws. Prosecutors laugh.

But are defendants to be targeted not for their specific conduct, but for how their conducts fits within the prosecutor’s identify narrative?

Lam: It’s part and parcel of progressive policies that you’re using the state to help correct historical injustices. It just so happens that for prosecutors, two different historical injustices are pulling them in different directions. Natasha Irving is trying to change the narrative around what counts as good evidence for and against a belief that a sexual assault occurred.

Irving: I hate the term “he said, she said.” It seems to only be used in the context of sexual assault, maybe domestic violence. It’s never used in all the other conceptual “he said, she said” cases—thefts, criminal trespass. A huge amount of our cases would be, technically, “he said, she said” or “she said, she said” or “he said, he said.” We believe testimony based on what we know about the world. We believe testimony based on circumstantial evidence and other corroborating evidence.

This isn’t a new approach for Irving, who makes no bones about being the avenging angel of women. She might not have sufficient evidence of guilt, but she’s not going to let that stand in the way of “believing testimony based on what we know about the world,” and what she knows is that men need to pay for the “historic injustices” of the patriarchy.

 These are the types of cases that may have been declined in the past because traditionally there has been pushback as to whether a jury is going to believe that a woman was raped. Those issues are not pertinent to me. It’s clearly illegal, we believe the victim, we’re going to move forward with those trials.

She knows who’s guilty and it’s got nothing to do with the evidence or the ability to obtain a conviction. It’s “clearly illegal” because she says it is. Sound familiar?

Conversely, what people took as reasonable doubt that a rape occurred actually doesn’t give reasonable doubt at all. In other words, judges or juries who would acquit because the woman was drunk, or had consensual sex with the defendant in the past, or didn’t leave the car, are not entertaining reasonable doubt—they’re entertaining unreasonable doubt. They’re using sexist standards of evidence. If that’s the argument, feminist prosecutors aren’t lowering the standards for a conviction—they’re correcting them.

How dare juries consider evidence, facts, that fit into the excuses of the Patriarchy? Stupid, sexist, unreasonable jurors. And if jurors are unreasonable, by which they mean not sufficiently indoctrinated into their feminist view of reality, there doesn’t seem to be much reason to have jury trials, the burden of proof beyond a reasonable doubt or the presumption of innocence.

Well, sure, the reasons still exist for other crimes, for other identities, for the defendants they like. But not for those they know are guilty when they are righting historic injustices, who only get away with it because jurors are unreasonable.