Some people like Taylor Swift’s music. Others may ask, “Taylor who?” For the latter group, I’m here for you. She’s the party in an action in the District of Colorado federal court trying to get a gender studies professor admitted as an expert witness to “profile” the kind of person who would grab her behind.
David Mueller has been accused of lifting up Swift’s skirt and groping her at a Colorado meet-and-greet in June 2013, an allegation that saw him lose his job as a DJ at the Denver country music radio station 98.5 KYGO. Mueller initially sued Swift for what he described as her “false” allegations, a move that was soon met by a counter-suit from Swift for sexual assault and battery in October 2015. In her deposition, Swift described feeling “frantic, distressed and violated” by the alleged incident.
While these feelings pretty much explain every song Swift has written, it nonetheless does not excuse Mueller if he, in fact, reached under her dress and touched her. But Swift’s lawyer, apparently, is unwilling to try his case based upon her testimony, and seeks instead to bolster her claim by calling an expert witness.
According to The Hollywood Reporter, Swift has commissioned Lorraine Bayard de Volo – who teaches at the University of Colorado Boulder – to analyse whether Mueller’s “behaviour is consistent with perpetrators of sexual assault”.
In her report, de Volo argues that Mueller’s “masculine status” had been challenged due to being treated as a fan at the meet-and-greet rather than as a VIP. “This perfect storm of threats to Mr. Mueller’s perceived status is consistent with the well-settled, academically-accepted, perceived threats to status that motivate a man to commit sexual harassment or assault,” de Volo adds.
De Volo is a Ph.D. women and gender studies prof, whose scholarship appears to focus on the intersection of gender and the Cuban Revolution. As such, she is a fully qualified expert to convey feminist mythology:
Sexual harassment and assault are fundamentally motivated by the perpetrator’s perceived need to assert power and to protect the perpetrator’s status. Throughout David Mueller’s pleadings in this lawsuit and his deposition testimony, he indicated that even before he met Ms.Swift, he felt his job security was threatened, his identity as a radio personality was threatened, and his masculinity was threatened. This perfect storm of threats to Mr. Mueller’s perceived status is consistent with the well-settled, academically-accepted, perceived threats to status that motivate a man to commit sexual harassment or assault.
She goes on to explain that the reason Swift failed to say anything about because that’s what victims “typically” do. And cites to the vast array of gender studies confirming the mythology.
What de Volo is not is a psychiatrist. What de Volo did not do is examine Mueller. While she has never testified as an expert before, which is hardly surprising, her testimony is sought in this case to apply the mythology of gender studies to “profile” Mueller as the sort of guy who would do this to Swift.
- Mr. Mueller’s pleadings and deposition testimony show that on the evening of June 2, 2013, Mr. Mueller faced an accumulation of perceived threats to his status consistent with the threats to status that, according to well-accepted academic research and studies, motivates sexual harassment and sexual assault.”
- “Threats to status revolved around his job and identity as a radio personality, both of which were also closely tied to his sense of masculinity.”
- “In my opinion, his stated perception of events and his view of his own status is [sic] consistent with the circumstances under which sexual aggressors would commit unwanted sexual contact, such as grabbing a woman’s bottom.”
In other words, fragile masculinity with a dose of “grabbing” thrown in for good measure. This falls below the level of propensity evidence, that someone who has done something before is likely to do so again, and condemns him for being a generically threatened male. And, it’s worth noting, there is no shortage of feminist peer-reviewed studies that support this.
What this does not do, however, is offer any substantive evidence to show that Mueller did what Swift alleges he did.
This is exactly the type of profile evidence that is inadmissible. “A profile is a collection of conduct and characteristics commonly displayed by those who commit a certain crime.” People v. Robbie, 112 Cal. Rptr.2d 479 (Cal. Ct. App. 2001) (opinion that defendant had the characteristics of a child molester was inadmissible). “Profile” evidence is that which attempts to link the general characteristics of, e.g. ,serial murderers to specific characteristics of a defendant. See People v. Prince, 40 Cal.4th 1179, 1226 (2007).Perhaps the most frequently cited example is the drug courier profile, which the United States Supreme Court has defined as “a somewhat informal compilation of characteristics believed to be typical of persons unlawfully carrying narcotics.” E.g., Reid v. Georgia 448 U.S.438, 440 (1980). Such profile evidence is not admissible as probative of whether or not the profiled individual committed any specific act.
While the notion that a court might allow a gender studies prof to testify as an expert, to both condemn males as sex assaulters because they suffer from masculinity and offer a pseudo-scientific basis for a woman’s failure to act promptly upon her claim, seems dangerously nuts, it might not be so far outside the realm of possibility under existing law. After all, there is a field of scholarly endeavor dedicated to gender studies, and tons of studies by those in the field promoting their own mythology as to what guys are all rapists and girls are all victims. That’s what makes up science, as far as the law is concerned.
However, should a judge as gatekeeper of junk science allow this generic pseudoscience into the courtroom, even if it’s allowed in the classroom, the same sort of evidence could be used against any criminal defendant to show he’s a rape-y sort of guy. Bear in mind, given the scope and breadth of gender scholarship, there is a paper to prove that every male is someone how a rape-y sort of guy merely by dint of being a guy.
And if being profiled as a guy is sound enough, the next step is even worse.
If her report addressed such extreme generalizations about race, as opposed to gender, Defendants would have been embarrassed to submit it. Ms. Bayard de Volo’s profiling of men is no less offensive, and certainly no more helpful to the jury, than classic racial or ethnic profiling.
Whether Mueller put his hand under Taylor Swift’s dress and grabbed her buttocks is the question to be determined. Whether the court should permit a gender studies prof to testify as an “expert” in how males are toxic, however, offers nothing but mythology to the mix. One can’t blame Swift’s lawyers for trying to bolster a weak case any way they can, but this is no more scientifically valid than those who claim that blacks are more criminal-ly, and thus deserve to be convicted for being black.