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Defending Rape Cases as a Feminist

A call to reassess America’s criminal justice methods surrounding sexual assault

The incident began as “normal teenage behavior,” concluded the probation report in my recent case. My client, a 17-year-old, was charged and convicted of California Penal Code Section 269, subdivision (a)(2): rape by force, violence, duress, menace, or fear. I was appointed to represent him on appeal.

My friends were shocked to hear that I — a devout feminist and low-key misandrist — was representing a convicted rapist. They were even more surprised to learn that I was able to do so without feeling my feminism compromised.

“So, he’s innocent?” they’d ask.

“No,” I’d say. (My clients are rarely innocent.)

Despite the masses having begun to cling fanatically to the label “feminist” in the past year, this version of feminism — one that cherishes those corny pink pussy hats and hails Emma Watson as its leader — is not one with which I’m particularly excited to associate. The feminism of 2017 involves “Future Is Female” T-shirts and “Feminist” throw pillows from Urban Outfitters. Feminism has been co-opted by capitalism, and capitalism has a powerful ability to eviscerate nuance. The feminism of 2017 is black and white. It points fingers and screams moral absolutisms without any understanding of how the power structures in which we are all complicit work to enable oppressive male behavior.

Law professor Elizabeth Schneider recently urged that feminism should “learn to accept contradiction, ambiguity, and ambivalence in women’s lives, and explore more ‘grays’ in our conceptions of women’s experience.” Another law professor, Georgetown’s Paul Butler, wrote in a related context: “[A]ll I’m saying is that the shit’s complex.”

Criminal defense attorney and Georgetown Law professor Abbe Smith wrote a Law Review article last year about defending rape cases as a feminist, concluding that “criminal defense is consonant, if not always consistent, with feminism.” Smith continued that the feminism to which she transcribes is “critical and transformative”—“it challenges ways of thinking and being, sometimes by complicating them. It deconstructs and reconstructs.” (Beyoncé has always been among my favorite feminists for this reason. The same album that features Chimamanda Ngozi Adichie’s feminist TED talk contains a reference to Ike Turner forcing cake into Tina Turner’s mouth, an implicit glorification of domestic violence. But there is an honesty and authenticity to the fact that Bey’s feminism is constantly being contradicted and renegotiated. It also calls to question the prevailing ideology: “Radio says speed it up, I just go slower.”)

Smith continued that there is a “feminist defense ethos” based on “an abiding skepticism of the reflective use of state power.” Likewise, Harvard Law professor Aya Gruber told me, “Feminists, as people who question the state, should be a little less sanguine about penal authority and its potential to reduce, rather than exacerbate, hypermasculinity.”

The United States is among the most punitive nations in the world and “indisputably the world leader in locking up human beings behind bars.” When it comes to sex-related offenses, we are particularly draconian. The average time served for rape is 60 months in the United States, compared to 34 months on average in our peer countries. What’s more, all 50 states have enacted sex offender registration statutes, which require a wide array of offenders to register or otherwise be criminalized. In 2010, the U.S. Supreme Court upheld Congress’ constitutional authority to allow the continued civil commitment of sex offenders after they have completed their criminal sentences.

Today, convicted sex offenders—ranging from rapists and pedophiles to young people in consensual relationships to public urinators and indecent exposures—are forced to live under highways and in encampments. Gruber told me that one of her clients was facing sex offender registration for grabbing a girl’s butt on a dance floor. Another client was arrested for his online chat relationship with a “self-professed ‘mature’ and ‘voluptuous’ teen,” who turned out to be a 32-year-old male Secret Service agent. Smith writes that there is a strong argument that our “hysteria-driven, hyper-punitive response to the broad category of those we call ‘sex offenders’ is not only ineffective but counterproductive.” I, too, worry that in focusing all our attention on harshly punishing the “evil” perpetrators, we might be missing the root of the issue: our collective societal failure to properly educate both men and women on appropriate and consensual sexual behavior.

My client met his victim at the mall, where both he and his mom worked. He saw the victim, whom he recognized, and struck up a conversation. They flirted in typical teenage fashion, strolling around and discussing their mutual interests. My client wanted to put his new iPad in his mom’s car, so the teens retrieved the mom’s keys and went to the parking lot. In the car, they began making out. Their accounts of what happened next differed drastically, and, as in most sex crimes, there were no witnesses to confirm or deny either account. My client maintains the victim said said “yes” through her actions, then “no” with equivocation, then “yes” with her actions again. Afterward, the two walked back to the mall together and followed each other on Instagram. They continued to direct message each other after the incident. It was not until months later, when an officer came to his school asking to speak with him, that my client understood that what he did was wrong. At the time of his juvenile court proceedings, he was incredibly remorseful and ashamed. Both his current girlfriend and ex-girlfriend testified that he had never pressured them sexually; in fact, they’d never even had sex. My client’s probation officer testified that because he will have a strike for the rest of his life and a juvenile sex offense on his record (ineligible to be sealed), my client’s lifelong dream of being a nurse was “gone.”

Deputy Public Defender Alana Kopke, who has been working on rape and sexual assault cases since 2007, recalled a similar story. In her most recent case, in which her client was charged with sexually assaulting a child, on the day of the incident, “no one, including the adult witnesses, thought anything untoward had occurred.” Over time, however, stories “changed and became more and more deviant.” Smith likewise wrote that she has represented men who seem to “come to after the rape, get ahold of themselves, and suddenly act ashamed.” She has represented men like my client who believe the act was normal courtship and ask for their victim’s phone number for another date.

Deputy Public Defender Demarris Evans, who has practiced law for 20 years in Northern California, also told me that in two of the three rape cases she’s had, her client believed the woman was consenting to sex. In one of these cases, the victim was in an alcoholic blackout and her client was developmentally delayed. “It takes a level of sophistication to understand,” she explained to me, “that even though a woman is acting like she wants to have sex, her level of intoxication can still make it illegal.”

Rape victim and author of The Lovely Bones Alice Sebold said that people tend to imagine rape “like a thud”: “She was raped. End of story.” But in representing accused rapists, Smith quickly learned that there “was nothing seamless, fluid, or formulaic about rape. It was often messy, awkward, prolonged, and bizarre.”

Feminist legal theorist Catharine MacKinnon has written that understanding the politics of sexuality is crucial to addressing sex crimes. In 1989, she wrote that the “male sexual role […] centers on aggressive intrusion onto those with less power.” MacKinnon continued that sexuality itself is a “social construct of male power; defined by men, forced on women.” (Looking at you, Harvey Weinstein!) Complicating matters, the male point of view, she wrote, is deemed “objective” and “distinguish[es] sharply between rape on one hand and intercourse on the other; sexual harassment on one hand and normal, ordinary sexual initiation on the other.” But MacKinnon believes that sexuality even in its “normal forms” — again, defined by the “objective,” male point of view — often still violates us. Therefore, so long as we call rape and sexual assault “abuses of violence, not sex, we fail to criticize what has been made of sex, what has been done to us through sex, because we leave the line between rape and intercourse […] right where it is.” For these reasons, MacKinnon concluded that it is “difficult to distinguish” rape from ordinary intercourse “under conditions of male dominance.”

Along these lines, journalist Laurie Penny recently wrote for Longreads:

You do not have to be a convicted rapist to perpetuate rape culture. You don’t have to be an active, committed misogynist to benefit from rape culture. I sincerely believe that a staggering proportion of straight and bisexual men are working with some ingrained assumptions about sex and sexuality that they have not fully analyzed…. The disaster of a modern heterosexuality that still teaches us that openness and honesty are boner-killers, that “things are better with a bit of mystery,” leaves not a few of us so overtaken by our own complexes and hangups that we cannot name abuse for what it is, much less consent.

This fuzzy line between ordinary intercourse and criminal sex in a patriarchal society partially explains why, in many cases, neither party realizes anything was out of the ordinary at the time the sex act occurred. Aya Gruber wrote that while the number of “stranger rapes” by men who violently attack women has dropped in recent years, other, more subtle forms of sexual assault, like date rape, are still chronic. She believes the criminal justice system is ill-equipped to deal with these subtler forms, though, because their root cause is less the evil mind of a psychopath but, more often, accepted social behaviors.

Gruber told me that people have expansive notions of what constitutes rape, and it can “run the gamut of everything from sex with violence to sex without ‘magic words’ or with drunkenness.” She told me that “[w]ithout a clear sense of what behavior is a) a crime, b) socially unacceptable, or c) socially acceptable but not ideal, it is hard to formulate policy around how to stop such behavior.” Gruber believes that women should “begin the complex process of disentangling feminism from the hierarchy-reinforcing criminal system that is unable to produce social justice.” Evans told me that during her recent rape trial, she grew to believe that the criminal justice and collegiate systems’ treatment of sexual assault cases assumes that “women are inherently victims.”

Kopke agrees. She told me that “the criminal justice system is poorly equipped for all sex crimes, but especially those with any subtlety.” She told me that if her friend was raped and did not get a rape kit done at the hospital ASAP, “I don’t know if I could advise her to report the crime to the police, because the system traumatizes people; it does not work to make them whole.” Moreover, Kopke does not believe that punishing the accused helps heal the victim’s pain. “How about we save society money and save peoples’ lives by applying evidence-based treatments like CBT to help heal the traumas of the alleged perpetrators and alleged victims, both of whom undoubtedly are deeply traumatized?” she proposes. Kopke advocates for a restorative justice model, which aims to repair the harm caused by the crime rather than throwing people behind bars.

“The fact that it’s called the California Department of Corrections disgusts me with its irony,” Kopke expanded. “I don’t believe any thinking person believes that locking someone in a cage in an incredibly dangerous environment makes them a better candidate for society when they reenter.” (To clarify, in my current case, I’m not arguing that my client was innocent, but rather that he — a teen — should be given sex offender treatment in lieu of his current incarceration.) Gruber believes that after decades of using criminal law as the main vehicle to handle sex offenses, it’s time for feminists to reassess.

As with most feminist issues and nearly all aspects of the criminal justice system, there is a troubling racial element at play. In 1983, scholar Jennifer Wriggins explained that the legal system has disproportionately targeted black men in rape convictions and left black women without redress: “It has denied the reality of women’s sexual subordination by creating a social meaning of rape which implies that the only type of sexual abuse is illegal rape and the the only form of illegal rape is Black offender/white victim.” While this article was written decades ago, the problem is still alive today. Gruber told me that cold cases continue to “go stale in inner cities, while resolute prosecutors will throw the book at the defendant when the complaining witness is credible (or, a race cynic would say, when the witness is white).” As with most other crimes, vulnerable populations — people of color, women, the disabled — continue to be disproportionately affected by these biases. Citing Michelle Alexander, Kopke told me that the prison industrial complex continues “to rely on the free labor of black and brown people.”

I asked Gruber where we go from here. She said we first need to figure out what needs mending. “Do we really need to de-eroticize domination and politicize desire? Is there a way to separate rape, imperfect sex, perfectly fine but gender stereotypical sex, and ideal sex? What is ideal sex anyway?”

Gruber advocates for increased communication and a greater cross-gender understanding of sexual desire and insecurity. She believes this can be achieved through early education about sexuality, sexual respect, and comfort. She told me that “if recent scandals have told us anything, it is that we need to be attuned to all the forces that create sexual harassment and assault problems — from gender, economics, power, allure, desperation, and race to many other forms of hierarchy.” This is not just an issue of what “bad” men do to women; rather, it’s an issue of great complexity that we need good minds to work through. “But, as in all things, minds working through complex problems don’t get media coverage and don’t make political change — polemics and activism do.” (See the pussy hats.)

In her law review article, Abbe Smith detailed her belief, in typical defense attorney fashion, that even badly damaged people can change. She mentioned her “teenage rapist” client, now almost 30, who writes extensively about his crime in his creative writing. Smith continued:

He is deeply remorseful. He has done a lot of reading about misogyny. He sees his crime as both an individual failure and a reflection of something terribly wrong in society. He sounds like a feminist.

It’s time for us to reevaluate our assumptions and methods regarding rape prosecution in this country and begin to engage in the complex analysis necessary to move forward.

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