Gertner: Rape and Enlightened Self-Interest

A recurring gripe is that readers agree with me 75% of the time, but that last 25% is the killer. Not only do they disagree, but they vehemently disagree, to the point where they want to reach through the computer and strangle me. How, they ask in earnest, can I be so wrong?

The “wrong” at issue is my writing on the subject of the changing tides of sexual assault, rape and neo-feminism.  The dilemma is easy to understand: liberal ideology vehemently supports the due process rights of criminal defendants, the free speech rights of individuals right up to the moment when an allegation is raised by a woman, whereupon the ideology does a 180° and blind support for women trumps everything else.  Why don’t I get that?

Female criminal defense lawyers have informed me that as much as they agree with me completely about criminal law, they find me intolerable when it comes to gender issues.  Whereas they take a principled stance when it comes to their duty as lawyers, they see no problem with abandoning all principle when the allegation is rape. Murders, no problem. Drugs, whatever. Rape? Well, that’s what ideology does to reason.

Former federal judge turned Harvard lawprof, Nancy Gertner, has written a lengthy piece in the American Prospect addressing this flagrant dilemma.  Her bona fides as a feminist are beyond reproach; she has done more of the heavy lifting to promote feminist concerns and interests than twinkies like Mary Anne Franks could ever hope to accomplish.

I am an unrepentant feminist, a longtime litigator on behalf of women’s rights, as my memoir, In Defense of Women, reflects. Rape, I insisted, is a crime to which women—including me—feel uniquely vulnerable, no matter who they are, no matter what their class, their race, their status. No one should have been surprised that I supported stronger enforcement of Title IX, more training for investigators, more services for complainants, systematic assessments of the state of enforcement on college campuses, and other tough remedies.

When I was a lawyer, I understood how inadequate the law was in addressing sexual violence at all. I worked for changes to the retrograde definition of rape in statutes around the country and their disrespectful treatment of rape victims, laws that were a throwback to medieval conceptions about women. I lobbied for rape shield laws that limited the defense counsel’s cross-examination of a woman about her prior sexual experiences. So little did the law trust a woman’s account of rape that some states required that a woman’s accusations be corroborated by independent evidence, a requirement to which no other crime victim was subject. The definition of the crime focused on the woman’s conduct, whether she had resisted “to the utmost;” a simple “no” did not suffice. To the extent that the man’s conduct was considered at all, the statutes required that he use force before his acts amounted to rape; drugging a woman, or having sex with one wholly incapacitated by alcohol, was not enough. And date rape was never prosecuted no matter what the circumstances.

Indeed, as you read Gertner’s article, you realize that she unabashedly embraces every feminist trope around, regardless of whether it’s based in fact, in personal experience or just a self-serving rhetorical sham.  Let’s face it, rape shield laws already elevate rape above all other offenses by protecting women from relevant evidence. Sure, there’s a good reason to do so, but there are no analogous shield laws for any other offense where the reasons would similarly exist but there is no “woman” to protect in the mix.

But unlike those who knee-jerk follow the ideology, Nancy Gertner didn’t forget what she did with the rest of her day: defend the accused. She offers a story of a defendant, “Paul,” who (we are required by her story to believe) was innocent of rape yet convicted for all the wrong reasons, foremost of which was that nobody wanted to bear responsibility for being the decision-maker ending the false rape claim nightmare.  He too deserved fairness. That was her point, accused rapist that he was.

Why, though?  Why give a damn about the outlier false rape allegation, when every other thought was how society must mold to the needs of women because, well, women.  Gertner offers a rationale.  It’s unclear whether this is what she believes, or this is what she’s trying to sell:

Further, how were colleges and universities to balance the interests of the complainant with those of the accused? Just as the complainants must be treated with dignity and their rights to a fair resolution of their charges be respected, so too must those accused of sexual misconduct. You don’t have to believe that there are large numbers of false accusation of sexual assault—I do not—to insist that the process of investigating and adjudicating these claims be fair. In fact, feminists should be especially concerned, not just about creating enforcement proceedings, but about their fairness. If there is a widespread perception that the balance has tilted from no rights for victims to no due process for the accused, we risk a backlash. Benighted attitudes about rape and skepticism about women victims die hard. It takes only a few celebrated false accusations of rape to turn the clock back.

If feminists push the limits too far, even though they deserve to be pushed to the wall, it will redound to their detriment and undermine the gains they’ve made up to now.  Don’t do it because it’s right and the ideology is flawed. Do it for self-serving feminist reasons, to protect the gains and not wake up the sleeping giant of reason, which will snatch them away.  Avoid the backlash.

Does Nancy Gertner mean what she says?  A disturbing admission in her article suggests this is for real:

As a federal judge, I did not have much occasion to address the issues with which I had been so concerned as a lawyer. Rape is principally a state, not federal, crime. I did deal with accusations of sexual harassment in the workplace, fully appreciating the extent to which sexual harassment obstructs equal opportunity and discriminates against women.  I wrote articles decrying the state of civil rights enforcement in the federal courts.  And on the criminal side, while I did everything I could to mitigate the harsh effects of onerous drug sentencing, I had no problem sentencing sex traffickers as harshly as the law allowed.

While sitting in judgment of others, Gertner concedes that her sentences reflected her personal ideology, being as harsh as the law allowed when the crime was one that she personally hated.  No, 18 U.S.C. 3553(a) has no prong for personal judicial prejudice.

This is an admission that she abused the power of her position to vindicate her gender-based hatred. At the same time, it reflects a level of honesty in her writing, that she has taken a position that she must, despite how feminist ideology might otherwise blind her.

When I seek to argue the unprincipled inconsistency of this ideological conflict, I’m easily dismissed because I’m male and just can’t appreciate the special suffering of women. But Nancy Gertner can’t be so easily dismissed.

Do it because it’s right.  Do it because it’s in feminist self-interest not to push the envelope so far beyond the pale as to give rise to a backlash. Either way, the law must either protect the rights of all accused or none. The Constitution, and the principles it holds, don’t and can’t end at gender.

16 thoughts on “Gertner: Rape and Enlightened Self-Interest

  1. Kathleen Casey

    I had no idea about the opinions you hear from female CDLs. That’s not me. I have represented sexual assault defendants, no rape defendants, yet. I have represented an alleged child molester, that for you would be the limit I guess. But I would rather represent a rape defendant or a child molester than either adult party in a divorce. Divorces bother me.

    Being a judge can be the wrong job for a good man. Or woman.

  2. bmaz

    This is why smart CDL communities talk with each other and make a book on judges. They all have personal biases that play out in how they treat and sentence particular classes and types of defendants. Is it right? No, but it is a fact. Gertner at least has the honesty to admit it, many, if not most, don’t. Probably easier to say now that she is in hindsight long after her judicial days, so maybe only partial credit for that.

    She really does seem to bit off on every trope and generality as you say, which is distressing.

  3. jerry

    > Either way, the law must either protect the rights of all accused or none. The Constitution, and the principles it holds, don’t and can’t end at gender.

    Very nicely written, echoes what I learned at the knee of James T. Kirk say, 50 years ago.

    > These words and the words that follow were not written only for the Yangs, but for the Kohms as well! .. They must apply to everyone or they mean nothing! Do you understand?

  4. Dragoness Eclectic

    Well, you were passable for 90% of this post… but “trafficking” is the modern euphemism for slavery, and slavery is sufficiently evil and offensive to humanity that those guilty of being slavers should be punished as harshly as the law allows.

    Our drug laws, on the other hand, are Prohibition 2.0, and work about as well, and should be done away with, and until our Congress-critters get their collective heads out of their asses and repeal them, the rest of us have to work around those unjust laws. The moral thing to do with an unjust law is to refuse to enforce it, or if that is not permitted, enforce it as weakly as possible.

    So I’m on board with Ms. Gertner. Slavery isn’t a gender issue–it’s just plain evil.

    1. SHG Post author

      This is a horribly scary and ignorant comment. You are a danger. Regardless of how much you, personally, categorically hate a particular offense, the idea that you think it’s acceptable to blindly punish people with utmost severity, without any regard for anything else, is outrageous.

      It’s outrageous for you to be so narcissistic that you feel that because it “is just plaint evil” to you, that makes it so. Does that work for everybody, or are you the Queen of the World, so only you get to decide what’s “just plain evil.”

      It’s outrageous that you leap to the baseless conclusion that trafficking is slavery (you have no clue what the law provides, but you apparently couldn’t care less about being ignorant before condemning people). Sex worker advocates like Maggie McNeil at the Honest Courtesan would beat you senseless for your ignorance, but you don’t care. Some dopey idea pops into your head, and you think it’s real?

      It’s outrageous that you would condemn people based on the crime alone, without the slightest consideration of the background, their lives, any of the factors that properly go into punishment. So fairness as good, as long as the crime doesn’t bother you, but if you hate the crime, every gets life plus cancer? That’s sick.

      Damn, this took me by surprise. You are a danger.

      1. Dragoness Eclectic

        Last time I looked–which would have been when the DOD inflicted their annual “Trafficking-in-Persons” mandatory awareness training on us–“Trafficking in Persons” is indeed slavery. I’m not narcissistic–as I recall, we fought a bloody civil war over the issue, so it’s not just me. Apparently it’s also the feds, too–see “Trafficking in Persons”. How is enslaving people and trading in slaves NOT a vile crime against humanity?

        Now if by “Sex trafficking” you meant “sex work”, someone is severely misusing the language by conflating the two concepts–and it isn’t me. If by “sex trafficking” you did NOT mean “Trafficking in sex worker slaves”, I am a fool and just stuck my foot in my mouth big time.

        1. SHG Post author

          Have you not figured out yet that the government (not to mention anyone whose purpose is to generate outrage by people who are sufficiently gullible to conflate rhetoric with reality) phrases crime in language intended to outrage people, when the facts underlying an offense ranges from the pedestrian to the outrageous.

          There are people who traffic in sex slaves, and there are madams who run brothels with sex workers who are quite happy with their choice of occupations. You leaped to the blind conclusion based solely on the word “trafficking,” and condemned them all mindlessly.

          And as for narcissism, no one (and that includes you) should reserve to themselves the decision of who is so unworthy of concern as to be condemned without thought. You hate sex traffickers, so because it’s you, you would condemn them. Your feeling a certain way isn’t the sine qua non of condemnation. It’s not about you.

      2. Dragoness Eclectic

        I can be educated. I followed the link you posted, and found it very interesting reading–so “sex trafficking” is the new bogeyman used to discredit and criminalize people? And yet… slavery is still a thing in many parts of the world–or so I’ve been taught. Is the DoD training (about recognizing it overseas and not contributing to it/reporting it) all a lie, propaganda, or is the only lie that sex work in the US must be slavery?

        I don’t think I’m a danger–I’m always willing to listen and be corrected. I’ve been on a jury in a federal case–we acquitted the guy because the government had a stupid case and I was willing to listen to the other jurors.

        1. SHG Post author

          Anyone who, based on a word, blindly leaps to the dogmatic assumption is a danger. It’s good to hear you are willing to be educated, but you shouldn’t have to be. You should be smarter than that. If someone doesn’t educate you, then you would have been happy to pull the switch based solely on your assumption, which was based solely on rhetoric.

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