Wednesday, March 23, 2011

"Mere Unwillingness"

[TW: Graphic descriptions of sexual assault from a court case; violence]

A while back, I noted how the media often points out the gender of female judges and prosecutors in sex crimes cases. By noting the gender, the media implies that it is a relevant factor in the case. And, perhaps it is. Yet, the gender of male judges and prosecutors is not routinely mentioned in sex crimes cases, implying that a man's gender is not relevant because, unlike women, men are not biased.

Indeed, judges who are not male, not white, and not heterosexual often have to go out of their way to assure everyone that they are not biased and beholden to any "special interest group." Straight judges rarely have to assure everyone that they aren't beholden to the special interest group of straight people. Men don't generally assure everyone that they will prosecute sex crimes cases fairly or that they do not hate women. White people don't regularly promise they won't advance the interests of white people at everyone else's expense.

Part of the privilege that comes with possessing characteristics that are considered the default in the US is that these characteristics are less recognized as aspects of one's identity and, accordingly, are viewed as Less Relevant To Things. Thus, the white person's experience of the world in white-dominated societies, especially as it pertains to matters of race, is the apparent sun around which all other life experiences orbit. The man's experience, especially as it pertains to matters of sex and gender, is more objective. Neutral. More accurate than other experiences.

Whereas Hon. Sonya Sotomayor is castigated for suggesting that a wise Latina might bring something different to the bench than does someone from a different background, a man gets a free pass to think all people experience the world just as he does and that, if they don't, their perceptions are wrong. I call this phenomenon illusory perceptive superiority (aka- fauxbjectivity).

Observe. In a 1981 Maryland rape case, a male judge dissents from a case in which the majority concluded a jury could have rationally found that a man was guilty of rape.

Under Maryland law (at least as it was written back then), a "person" was guilty of rape if that "person" engaged in "vaginal intercourse" by force or threat of force against the will and without the consent of the other "person." A key finding of fact in this particular case was whether the woman resisted, or was prevented from resisting because the man's acts caused her fear of imminent bodily harm. In making this determination, it had to be ascertained as to whether this woman's fear was reasonable under the circumstances.

So, right off the bat, I can think of some problems with men being the deciders of whether a woman's fear of bodily harm was or was not reasonable, the primary one being that men and women generally experience rape culture differently. Indeed, let's see how the dissenting male judge frames the facts to reach his conclusion that the man should not have been found guilty of rape:

"While courts no longer require a female to resist to the utmost or to resist where resistance would be foolhardy, they do require her acquiescence in the act of intercourse to stem from fear generated by something of substance. She may not simply say, 'I was really scared,' and thereby transform consent or mere unwillingness into submission by force. These words do not transform a seducer into a rapist."

Note that there are basically two types of men in the world in rape culture: seducers and rapists, and that it's considered a skillful, benign seduction if a man gets a scared and unwilling woman to "have sex" with him. "Having sex with" a woman who was "merely unwilling" to "have sex" was not rape.

Here, note that while I strongly disagree with this definition of rape, the judge was, technically, correct with respect to how men had written the rape statute. "Mere unwillingness" and fear on the part of a woman was not legally sufficient to constitute rape. Physical force or the threat of force had to be involved for it to be considered Real Rape. Everything else was, legally, a successful seduction.

The male judge continues, of the accuser:

"She must follow the natural instinct of every proud female to resist, by more than mere words, the violation of her person by a stranger or an unwelcomed friend. She must make it plain that she regards such sexual acts as abhorrent and repugnant to her natural sense of pride. She must resist unless the defendant has objectively manifested his intent to use physical force to accomplish his purpose. The law regards rape as a crime of violence. The majority today attenuates this proposition. It declares the innocence of an at best distraught young woman. It does not demonstrate the defendant's guilt of the crime of rape...." (emphasis added).

I've been sitting here trying to parse WTF this judge means by "the natural instinct of every proud female to resist" and reckon he's saying (a) it's the duty of beauty to tame the beast, and (b) contrary to the law which says that a woman doesn't have to use physical force to defend herself from rape, he thinks a rape isn't real unless a lady defends herself using "more than mere words." And, if she doesn't do so, she's not proud or natural. At best, she's "distraught" and at worst, I think we can fill in the blanks here, she's a slut who is having morning-after regrets.

He continues:

"Here we have a full grown married woman who meets the defendant in a bar under friendly circumstances. They drink and talk together. She agrees to give him a ride home in her car. When they arrive at his house, located in an area with which she was unfamiliar but which was certainly not isolated, he invites her to come up to his apartment and she refuses. According to her testimony he takes her keys, walks around to her side of the car, and says 'Now will you come up?' She answers, 'yes.' The majority suggests that 'from her testimony the jury could have reasonably concluded that the taking of her keys was intended by Rusk to immobilize her alone, late at night, in a neighborhood with which she was unfamiliar....' But on what facts does the majority so conclude? There is no evidence descriptive of the tone of his voice; her testimony indicates only the bare statement quoted above." (emphasis added)

On what facts does the majority so conclude? That he said "Now will you come up?" indicates that he had asked her, previously, to come up to his apartment, that she had refused, and that she had only agreed once he took her keys.

"How can the majority extract from this conduct a threat reasonably calculated to create a fear of imminent bodily harm? There was no weapon, no threat to inflict physical injury."

Here, the judge evidences an unfamiliarity with the phenomenon of how girls and women are often culturally trained "to delegate our personal safety to the men in our lives." The myth of female physical incompetence sometimes becomes a self-fulfilling prophecy that reinforces the idea that women are inherently incapable of defending ourselves against men, who will stop at nothing to, er... "seduce" us. Even if a man doesn't have a weapon, his presence alone can imply a physical threat to many women.

Hey, I don't make the rules. IBTP.

Anyway, we learn that there are, actually, more relevant facts to this story. The male judge continues:

"She also testified that she was afraid of 'the way he looked,' and afraid of his statement, 'come on up, come on up.' But what can the majority conclude from this statement coupled with a 'look' that remained undescribed? There is no evidence whatsoever to suggest that this was anything other than a pattern of conduct consistent with the ordinary seduction of a female acquaintance who at first suggests her disinclination."

Taking a woman's keys and pestering her for sex is just the ordinary seduction of a lady? Keep reading. The male judge informs of us some more Don Juan tactics:

"After reaching the room she described what occurred as follows:

I was still begging him to please let, you know, let me leave. I said, 'you can get a lot of other girls down there, for what you want,' and he just kept saying, 'no,' and then I was really scared, because I can't describe, you know, what was said. It was more the look in his eyes; and I said, at that point I didn't know what to say; and I said, 'If I do what you want, will you let me go without killing me?' Because I didn't know, at that point, what he was going to do; and I started to cry; and when I did, he put his hands on my throat and started lightly to choke me; and I said 'If I do what you want, will you let me go?' And he said, yes, and at that time. I proceeded to do what he wanted me to."

Well, the male judge notes, the rapist was only choking her "lightly":

"She then testified that she started to cry and he 'started lightly to choke' her, whatever that means. Obviously, the choking was not of any persuasive significance. During this "choking" she was able to talk. She said 'If I do what you want will you let me go?' It was at this point that the defendant said yes."

Whatever that means? How about, maybe, he was choking her enough to get her to comply but not enough to kill her and thereby face prosecution for a Serious Crime that isn't laden with slut-shaming, victim blaming, and apologism.

The male judge ends:

"I find it incredible for the majority to conclude that on these facts, without more, a woman was forced to commit oral sex upon the defendant and then to engage in vaginal intercourse."

And I find it incredible (but not really, you know), that despite the uncontested facts in which a man (1) stole a woman's keys in a neighborhood she was unfamiliar with; (2) insisted that the woman go up to his apartment, even after she previously refused; (3) repeatedly asked her for sex after she repeatedly refused, (4) "lightly" choked her; (5) agreed to let her leave unharmed if she "had sex with" him; (6) and then "had sex with" her after she had been crying and begging to leave could viewed as anything other than rape.

So yeah, welcome to rape culture's "neutral."

Where the boundaries of women matter less than the rights men have to "seduce" women. Where, if a man doesn't think it would be reasonable to feel threatened in a situation, then it's not reasonable for anyone else to feel threatened in that situation.

I don't claim to be objective. I don't claim to be neutral. But we need to collectively understand that male judges, and men in general, are not objective or neutral either.

"There is no neutral in rape culture."

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