Former criminal defense lawyer turned federal judge turned Harvard lawprof Nancy Gertner has been held out as a paragon of rational feminist thought for having the temerity to take a stand against the neo-feminist ideological shift in the definition and adjudication of college sexual assault. As previously noted, her feminist cred makes her opposition more significant than others who can be dismissed as misogynists or rape apologists. You can’t ignore Nancy Gertner.
But as with others who are held out as the voices of the loyal opposition against a trending evil, “friends” in a cause if you will, Judge Gertner’s opposition comes with compromises. This is reflected in Conor Friedensdorf’s post about an interview of Judge Gertner by Caitlin Flanagan, which covers many significant issues. One of them is reflected here:
Caitlin Flanagan: What about the issue of second thoughts, regretted sex? Having gone to college a long time ago, date rape looked very different … I went to college in the South and they were all male deans. If you went to him and said you were raped, you would almost certainly be blamed for it … The idea would be, “You probably wanted to do it and now you’re sorry you did it and so you’re calling it a rape.” So it’s a horrible old stigma around rape victims as old as time. And yet we have to be openly talking about everything. There may be cases where [regret] plays a part. As a feminist, how do you talk about something as loaded as second thoughts?
Nancy Gertner: If I can inject any humor into it, my old fashioned view of this was––and this is something the Senate didn’t know when they confirmed me as a judge, and now it’s going to go viral, but whatever, I’m at a point in my life where my chances on the Supreme Court are shot––I used to call it, “windows.” The phenomenon was “windows.” You’d have sex with someone and you’d wake up the next morning and you wanted to jump out a window, not because you felt it was a terrible, immoral thing to do; that had changed. You just wanted to get out of there without having to deal with breakfast and have no relationship with the guy. And so jumping out the window was the fastest way out of the house. I think we have to talk about male-female relationships. Certainly there are situations––if a woman is using getting buzzed to take away her inhibitions, if a woman is doing that, she’s not taking responsibility for the act. If a man is feeding her liquor it’s a different issue completely.
We now have freer sex, but still in an atmosphere of social inequality for women, so that there are myriad situations in which a woman will feel compelled to say yes when she really doesn’t want to, in a situation where the power is different. Not feeling comfortable saying, “I don’t want to have sex now,” feeling social opprobrium if she looks that way. You can’t deal with those issues easily, certainly not in the criminal justice system.
Much as we may appreciate that Judge Gertner isn’t trying to finagle an invite to Sen. Kirsten Gillibrand’s Mattress Girl sleepover party, her response here is replete with memes and excuses that are dangerously compromised. If a woman drinks on her own, it’s her responsibility, but if a man “feeds” her alcohol, she bears no responsibility for downing a dozen shots of tequila? Because there is an “atmosphere of social inequality”? Because she might face “social opprobrium” is she says no?
What one might reasonably expect of an old school (or second wave, if you’re of that ilk) feminist is the belief that women are, and deserve to be, equal. Equal sucks. We knew that then, and it hasn’t gotten any better. It meant giving up the cultural norm of guys buying drinks and dinner, maybe a movie. It meant not having every door opened for you, every bag lifted so your delicate arms were never forced to do anything more than apply lipstick. It meant being responsible for yourself.
Yet, Judge Gertner still talks about an imbalance of power as if it exists and is so overwhelming that a woman feeling uncomfortable about saying no to sex is a reason to hold a man culpable for rape. This isn’t just a slippery slope, but utter nonsense. Unless you’re claiming an imbalance of physical strength (which would be the very different scenario of forcible rape), the only imbalance exists in one’s head.
No one can force anyone else to feel anything they don’t want to feel. Asserting yourself makes you feel discomfort? Bummer. That’s one of the prices of equality, that you have to be equal and suffer the occasional discomfort.
While Judge Gertner has stood up when it came to signing off on the Harvard Lawprof letter in opposition to the new sexual assault regime, which is certainly appreciated, it appears that her vision of what would constitute an acceptable regime falls somewhere south of equality, and continue to excuse women for their lack of responsibility. Regret would still be a basis for conviction, provided the guy bought the drinks instead of the gal.
What part of equality, of personal responsibility, gives rise to an exception if a woman’s sensitive feelings dictate rather than her actions? Judge Gertner still embraces the idea that an element of the crime of rape is the secret, inner, sensibilities of the delicate female who just can’t say “no” because she it might make her feel uncomfortable. And so the guy is a rapist.
And if Judge Gertner’s views on regret raise problematic issues, her views on compromised due process are at least as bad, if not worse. Much as her bona fides as a feminist may make many hold Judge Gertner up as a paragon of reason in her opposition to the worst extremes of the new vision of college rape, her views reflect such deep compromises and confusion that they would only be marginally better. It’s not good enough.
Equality can be uncomfortable. Responsibility can be uncomfortable. Deal with it.
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Good job of deconstructing Gertner’s comments on “second thoughts.I” Powerfully put.
There once was a federal judge named Nancy,
Whose bona fides were most certainly fancy.
When the Supremes scoffed,
She became a Haarvard law prof,
And backpedaled on sexual equality!?!
Happy Fourth everyone. Now is a good time to
read the Declaration of I., instead of paying lip-service
to it. It has aged exceedingly gracefully, unlike some
of our court decisions.
And let’s keep Hamilton on the ten-spot. Put Hillary,
or the woman of your choice, on the three-dollar bill.
Why mess with precedent?
You ask people to read it but can’t be bothered to spell out the word Independence? Shameful.
I know links are against your policy, but if you could provide one for the Declaration of Doriss, that would be handy. I can’t find it anywhere.
Happy Fourth, anyway!
I-N-D-Y-P-E-N-D-A-N-C-E Day. There,… now are you happy?
Too bad so many judges, justices and government officials will be sitting in the grand stands today
at parades around the country, giving lip-service to our Founding Document, without a clue!?!
When was the last time these important, credentialed folks read the bloody thing?
Meanwhile, refugees from around the world are dying to get “green cards” to get into the country with the highest proportion of its citizens incarcerated. Some for “life”. It is utterly bizarre and weird. Hypocritical comes to mind. I like that word, “hypocritical”!
As for Patrick “Henry” Maupin,… let me guess? He has only one life to give for his country.
When growing up, there was a fellow–a grown man–who, when asked what he “did for his country today”, said–and I quote–“I woke up”. It has taken me many, many decades to figure out what the hell he meant? I believe, I now know. He may have altered my consciousness without even realizing what he was doing.
Anyhow, we’re celebrating today because of it is habitual more than anything else. We like Thomas Jefferson. He was an enigma wrapped in a conundrum. Call me a cynic, if you must. (My family, including me, are all vets.) A little more “consciousness” and a little less “force” would be desirable, both here at home and abroad. Finally, this is our favorite legal bog; now to the barby and the bar. Not necessarily in that order? Certainly not the Board of Bar Overseers! That will be another day.
Heh. You spelled “blog” wrong. You were trying to spell blog, right?
I was trying to spell “blawg”, but with so many bogs here on CApe C0d–and having already hit the bArrr–I spelled it incorrectly. Sincerest apologies! Early-onset Allah Zheim Disease? Let the fireworks begin!?! Do not drunk and drive thru the Dunkin Donuts Holes of Life.
Kids these days! But at least they won’t needlessly suffer the dehumanizing depravities that ruined their grandparents’ generation.
Shamelessly purloined from the oeuvre of Mssrs. Flanders and Swann¹, liberation from whose country’s monarchical oppression we celebrate today:
Have some Madeira, m’dear
I’ve got a small cask of it here.
You know it won’t keep
It’ll will help you to sleep.
So, have some Madeira, m’dear!
1. Mr. Barleycorn or our gracious host can doubtless provide the video URL if deemed appropriate.
Well, since it is the Fourth of July…
Hmmm, are they going to come for fubar before or after they come for Ogden Nash?
If the Ragin’ Cajuns Athletic Feminists Foundation of Toronto decides to accept the Retired Feminists of the Royal Canadian Air Force bikers club invitation to crash the scheduled, Intergenerational Tensions at the Forefront of the Limits of Female Perspectives and What To Do About Bacon, lectures that are scheduled to sweep across the American college landscape this fall like a wild fire, and Led Zeppelin remixes becomes popular in sensible commuter automobile commercials there could be a breakthrough amongst males between the ages of 19-39 likelihood to consider wearing polyester shirts again as long as oil prices continue to ride out a stable plateau.
If all of these likely events happen I predict that Nancy Gertner will be offered 1.275 million to write a book about investment strategies for single female college graduates that will become a best seller. She will then be offered a seven million dollar contract to be the spokeswomen for the yet to be created Badass Bacon Babes food truck chain that will make Uber look like child’s play when it comes to the win/win and profitability of “sharing” with strangers.
This will be a good thing but just to keep things in perrspective:
If the Badass Bacon Babes food trucks were allowed to serve beer with their burgers and sell marijuana to go all of western civilizations problems except divine conception would be solved in generation and-a-half.
This isn’t going to happen in America and it’s your fault for not letting things slide at the margins of the feminist discussion. When you should instead be focusing on the impossibility of freedom and equality when there will be no such thing until a young couple can give the Badass Bacon Babes forty bucks for burgers and beers and then pick up a gram of marijuana for ten bucks to vape on the street while they walk back to the train station for the ride across town to their three hundred square foot apartment where they can make love like astronauts and then talk about freedom equality over a shared bowl of ice cream as the sirens in the street echo through their open window over looking alley.
Those polyester shirts days were horrible. Huckapoo, as I recall.
The “busy patterns” never went away and are everywhere within the current “feminist” discussion.
Don’t be so easily distracted esteemed one, let the feel of the poor mans silk set you free.
I’ll say it again: where are these women who don’t feel they can say “no” to a man’s advances, and why don’t I ever meet any of them?
“I went to college in the South and they were all male deans. If you went to him and said you were raped…”
If youre the victim of a crime, try reporting it to the police, not the dean of students. He doesn’t know how to investigate crimes.