Did David Mueller lift up Taylor Swift’s skirt and grope her? It’s a fairly straightforward fact question. It either happened or not, and that’s the question of fact for the jury to decide. But Swift’s lawyer, Brian Schwalb of Venable, wasn’t willing to take the chance of an adverse finding, so he tried to gild the lily.

He proposed to introduce the “expert testimony” of University of Colorado Boulder gender studies prof Lorraine Bayard de Volo to “explain” Mueller’s masculine fragility.

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 was because that’s what victims “typically” do. And cites to the vast array of gender studies confirming the mythology.

Colorado District Judge William Martinez says “nope.”

… Dr. Bayard de Volo’s … opinions do not explain evidence which will be before the jury that it otherwise could not understand, such as drug paraphernalia, gang practices, or some technical matter. The jury will have ample direct and readily comprehensible evidence from which to resolve the central factual question of whether Plaintiff did or did not improperly touch Ms. Swift. The jury will have a much better opportunity than Dr. Bayard de Volo herself has had to draw their own conclusions of whether Plaintiff actually perceived the kinds of threats to his masculinity that her Report describes and, if so, how he responded in the event.

Thus, applying the common sense inquiry required under Rule 702(a), … the Court concludes that Dr. Bayard de Volo’s opinion would do little, if anything, to assist the jury in understanding the case and the evidence material to the central factual dispute in these proceedings. Whether the jury finds, based on the testimony and other evidence, that Plaintiff did improperly touch Ms. Swift, or finds that he did not, the questions of what motivated him to do so, including any perceived threats to his purported status as a powerful male, will be beside the point.

If anything, this testimony would be unhelpful to the jury because it would tend to complicate the otherwise straightforward question of “what happened” with issues of why it happened, and whether what occurred in this case was or was not consistent with alleged broader societal patterns of men reacting in physically threatening ways to powerful women who threaten their masculinity. Thus the Court finds that Dr. Bayard de Volo’s opinion would do little to assist the jury in resolving the disputed issues in this case.

This gentle explanation reflects the kindest way of saying that the feminist mythology proffered by Bayard de Volo, regardless of whether it’s true or madness, brings nothing to the proof. Emasculated men are fragile? That’s nice, but did Mueller touch Swift? That’s the question before the jury, regardless of dogma.

At Volokh Conspiracy, Eugene tries to thread the needle a bit:

Thus, for instance, though the court argued that “the otherwise straightforward question of ‘what happened’ ” should not be complicated “with issues of why it happened,” whether a person has a motive to do something is often relevant to deciding whether he indeed did it. (Motive alone, of course, isn’t sufficient evidence to prove what someone did, but it may still be a relevant part of the evidence that the jury should consider.) On the other hand, the rules of evidence provide that not all relevant evidence is admissible, but some may be excluded because it’s unduly confusing or prejudicial.

While he’s right that motive, though not an element of an offense, may well bolster the question of whether conduct, in fact, happened, this conflates motive with propensity. The testimony bore no connection with why this specific defendant had a motive to engage in this specific conduct with this specific plaintiff. Rather, it was generalized theory about males being all fragile in the face of powerful women, and exerting dominance through sexual assault.

Judge Martinez, however, recognizes the problem:

In sum, the Court holds that Ms. Bayard de Volo’s “Opinion #1” (including with the analysis underlying it…) is also inadmissible under Rule 403, because its limited probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, and/or misleading the jury.

Was Mueller a “frustrated” male who believe it was “his prerogative as a radio host who regularly met with famous women” to touch Swift’s butt? Perhaps, and this would no doubt make a wonderful subject for a gender studies doctoral thesis. But the only question before the court is whether he did so, and Bayard de Volo’s masculine fragility mythology has no place before the jury charged to decide that question of fact.