Ed. Note: The following is a guest post by Jessa Nicholson, partner at Nicholson Goetz & Otis in Madison, Wisconsin. Jessa’s post comes as an “in the trenches” view following the recent criticism of women defending men accused of sex offenses, as if a defense lawyer defending defendants of the wrong sort of crime was a traitor to her gender.

I had a draft of this guest post saved on my computer to send when I found myself arguing in opposition to the admission of “other acts” evidence in a campus sexual assault case I’m handling. I’m one of those women that sells out the sisterhood by defending people accused of sex crimes.

I had done a decent job of tackling the topic in the draft I had, but then I went to this hearing and the prosecutor arguing the case started talking about how the “other acts” witness was in the same “vulnerable position” the accuser had been in, and as such, her previously unreported, uninvestigated, uncorroborated claim that my client had once taken her photograph without permission ought to be introduced as evidence of my client’s motive to sexually assault an entirely different woman roughly two years after this as-of-yet-unreproduced photograph was taken.

This proves motive how, exactly? Because of the shared, unique, particularly vulnerable position these two women once occupied as . . . sober adults found in dorm room with another sober adult in a college town. When the prosecutor argued that these two women had been in a particularly vulnerable position, it wasn’t because they had been intoxicated, or lost, or without any money or way to get home, or that they had lost their phone, or that they were under the influence of date rape drugs, or that they had been injured. It was that they were women. In a dorm room. Alone. With a man. This was the “particularly vulnerable” position. Living while female.

I heard that argument and I had to redraft, because usually, that sort of sexism isn’t really on display until a sexual assault sentencing.

As a criminal defense attorney who focuses on violent felony cases, I have been to hundreds of sentencing hearings. There is usually a lecture from the judge, and the lecture usually contains a version of the speech that can be given on autopilot for players in the criminal justice system: If it’s child abuse, there will be a discussion of the importance of not abusing a position of trust or authority. If it’s armed robbery, talk of frightening the community, decreasing property values, and taking personal responsibility. If it’s a bar fight, there will be an acknowledgement that injuries were sustained, restitution ordered for lost wages and, if the defendant has sobered up since the offense, he will usually be applauded for his efforts at rehabilitation.

No one is put on a registry or lifetime GPS monitoring. The offending behavior is usually explained as being an isolated incident, wholly out of character for the accused or as a response to some complicated combination of trauma, instinct, poverty, and addiction. No one is called evil. The judge concludes by pronouncing sentence and telling the victim that they hope the sentencing hearing has provided some closure, and wishing them well in the future.

The exact opposite occurs at a sentencing involving the crime of sexual assault. Restitution is left open because we don’t know how much future counseling the victim will need. When she speaks (and yes, it’s almost always a she), she expresses that the defendant is some type of psychopath incapable of even the most basic human kindness. There is never enough prison time to account for what has been lost.

Defense attorneys like me call witnesses and make exceedingly well-researched arguments about low recidivism rates and treatment, but no one listening really believes them. These guys don’t change. That’s why we need things like the registry. The community must be alerted. The judge must express sincere, deep sympathy for the devastation the victim has experienced and laments that this victim will never be the same.

Take a minute to think about what’s going on in these courtrooms. For the lawyers reading along, recall your blowoff Sociology and Law class from your second year. Remember how until the middle of the 20th century, rape laws were largely considered property crimes. The damaged property in question? Chastity. Innocence. Virginity. Now, as we all know, second-wave feminism kicked back on this antiquated, depersonalizing nonsense hard, urging a reimagination of the purpose of laws aimed at preventing sexual violence.

As we moved towards the end of the 20th century, these laws were redrafted and rewritten with an eye purportedly towards recognizing the bodily autonomy and personhood of a sexual assault victim. The focus became consent, rather than lack of resistance. This was a shift that needed to happen for women, but it left the job half done. We have now correctly written our laws to decree that rape is a crime against a person, not some notion of chastity or some precious trinket that must be protected lest it break.

We have not, however, worked this newfound understanding of the person injured into our understanding of how the crime functions. We still treat victims of sexualized violence like property insofar as property is static. If I break your stereo, it will remain broken until someone fixes it. People, however, are resilient. We can fix ourselves.

By insisting that all women are in a “particularly vulnerable” position simply by existing as a woman, we do the same thing as when we tell sexual assault victims that they will never be the same. We send the message that their victimization is stronger than their personhood. Worse yet, we conflate womanhood with the capacity to be victimized. The result is that the criminal justice system resoundingly announces that women are victims first and people second.

They’re broken, and we are sorry, but they’ll always be broken. It isn’t their fault, they didn’t choose it, and there’s nothing to be done. That sex crimes carry a distinct and unique stigma among criminal offenses, then, must logically follow given that this is the weight we have assigned to being the victim of one. If the victim is forever changed, then the perpetrator is a life-alterer. Worse yet, he’s a life-ruiner. That isn’t a character flaw or a bad decision, it’s who he is. The bogeyman. The registrant. Wholly unlike the rest of us. And just like that, we have no women and men, just victims and perpetrators.

We don’t have to make sex crimes different. We could assume that the adults at the scene were there because they were adults at a scene. We could reimburse victims for their losses and acknowledge that they’ve been harmed. We could let a sentencing hearing represent a day of both reckoning and closure. We could treat women as whole persons driving their own healing rather than passive participants in their own lives, and by doing so, we could allow space for perpetrators to regain their humanity. We could treat sex crime sentencings like we treat sentencings for bar fights, but we don’t. And it’s hurting women the most.