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Entries beginning with a number are a continuation of the old Judging Crimes blog, which was long focused on the two meanings of its name: the way crimes are judged in America, and the, uh... occasional defalcations and derelictions of the berobed.

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« 140. Are you a judicial liberal? | Main | 138. Unbridgeable differences »

139. Categories of misogyny

What's the difference between a sociologist and a judge?  One has data but no power.  The other ...  But a lack of data has never stopped judges from practicing sociology and psychology.  And in many ways it's actually easier to be a social scientist if you don't know what you're doing, because then you're not inhibited by that pesky university-bred disapproval of fabricated data.

 Thus, for example, if a 14-year-old niece were actually raped by her 49-year-old uncle, she would have described it to her aunt at the first opportunity.  That's simply a fact.  That's what all 14-year-olds raped by their uncles do.  "What more natural than if she had suffered this terrible outrage that that she should have informed her own aunt, her mother's [and the rapist's] own sister?"   Since she didn't, it unavoidably followed that she wasn't raped.  (Goodale, 109 S.W. 9 (Mo. 1908)) 

See how easy it is if you don't let an absence of data discourage you from making generalizations?

In the Goodale case, the defendant told his sister that the 14-year-old had been screwing around with some man, which the court took as evidence of his avuncular concern for her welfare, and as further evidence of her sluttishness.  That seems like wilful blindness - anyone today would find the uncle's interest in his underaged niece's sex life creepy, at best, and would wonder if his remark wasn't his way of preparing the ground for the accusation he had every reason to anticipate. 

But the case was decided in 1908, the year before Freud and Jung visited Clark University.  (Here's the famous photo of the event.)   In the era before the basic concepts of psychology permeated American society, it was perhaps understandable that well-meaning male judges might honestly believe that a child raped by her uncle would inevitably react in a certain stereotyped way, following a script written by other male judges of the past.

But once educated Americans began to understand the type of distorted thinking produced by cross-currents of humiliation, shame and physical pain -  not to mention the amazing human capacity for blaming oneself for one's misfortunes - surely, by the time those concepts came to be topics for Reader's Digest judges were no longer quite so confident that every victim of sexual assault must necessarily live up to the judges' expectations.  Right?

Well, no.  The Illinois Supreme Court of 1950 informed us that "[w]here the injured female testifies to the commission of the rape, evidence of complaint by her soon after the occurrence, or at first opportunity, is competent, not to prove the commission of the act but to corroborate her testimony."  But where the prosecution fails to call the first people she came into contact with, including a taxi driver, their non-testimony is evidence that she was not actually raped.  (Scott, 95 N.E.2d 315 (Ill. 1950)) 

(Note the pseudo-distinction: such testimony is not required to prove the commission of the rape, but to corroborate testimony that the rape was committed, corroboration that, of course, would prove the commission of the rape - a fine example of "the first distemper of learning, when men study words and not matter".  See post 129.)

The Illinois court added that it is "a fundamental rule in such cases ... that voluntary submission by the female, while she has power to resist, no matter how reluctantly yielded, amounts to consent and removes from the act an essential element of the crime of rape."  There are only two possibilities: that she consented, or that she did not consent. 

That distinction was based on the words of the statute, but it was only the foundation for the peculiar edifice the justices constructed.  For how can you tell whether a woman consented?  Her word against his isn't nearly enough.  That was established long before: "Lord Hale once aptly observed that an accusation of rape is easily made, hard to be proved and still harder to be defended by one ever so innocent. "  (That quote found its way into the Missouri case of 42 years earlier, too.) 

It didn't matter that Lord Hale's quotation made no sense at all.  How was it ever easier to allege rape than, say, robbery?  How was it ever harder to disprove?  On the contrary, the humiliation inflicted by the legal system always made rape the hardest of accusations to make - but only in real life.  Inside the courtroom, Hale's weird dictum was the higher reality.

The Illinois Supreme Court explained that there were two categories of criminal cases - rape cases, and all others.  In the former cases, the victim was a "prosecutrix" ( a term still occasionally encountered today).  No other victim of violent crime was given a special label, one that implied she was the instigator rather than the victimized. 

In all other criminal cases, the jury decided which witnesses to believe.  Appellate judges asked only if the jurors had taken leave of their senses.   But "reviewing courts are especially charged with the duty to carefully examine the evidence in rape cases.   It is the further duty of a reviewing court, ... to reverse the judgment if the evidence is not sufficient to remove all reasonable doubt of the defendant's guilt".  Not only the jurors but the appellate judges had to be subjectively convinced beyond a reasonable doubt.

Since the jury couldn't be permitted to decide for itself which of the witnesses was believable and which was lying, that duty unavoidably fell to the appellate judges, a group of men who never saw the witnesses or heard their voices, and had only an error-riddled transcript to go by.  (All transcripts are error-riddled.  A 99% accuracy rate means a minimum of two mistakes per page.) 

Given that they had no actual basis on which to determine credibility, the Illinois justices relied instead on logic, or rather sophistry.  Aristotle's famous example of the fallacy of "affirming the consequent" goes like this: The ground is wet when it rains; right now the ground is wet; therefore it's raining.   The way it worked for the Illinois Supreme Court was: Women who are really raped never stop fighting while strength remains in their body; this woman quit fighting after she was beaten up, even though strength remained in her body; therefore she wasn't really raped.

What the justices were saying, whether or not they were sufficiently conscious of the meaning of their work to realize it, was that the world's female population was divided into four categories:  (1) women who are raped, and (2) women who are not raped; and, (A) women who fight to the last, and (B) women who don't fight to the last.   And - this is the real holding of the case - those four categories were really only two: women in category (A) are also in category (1), and so - therefore - women in category (B) also belong to category (2). 

But where did the court come up with the sociological / psychological data that categories (A) and (1) are perfectly coextensive?  What evidence did it have that victims of rape universally fight to the last?  The court was writing just two years after the first Kinsey Report.  Were adequate datasets really available to them?  How reliable were the researchers' methods?  What statistical analyses were made?

The justices had none of that social-science stuff, but they had something far better: prior opinions by male lawyers even older than themselves.  Rape, after all, was a legal category.  A woman was raped only if a court affirmed the conviction of her attacker; and courts would do so only if she fought to the last; so, therefore, only women who fought to the last were raped.

Okay, but that was way back in 1950.  Closer in time to Queen Victoria's funeral than to our world of 2006.  It was the Dark Ages back then.  Surely by the time the enlightened '60s rolled around, things had changed.

Well, no.  In 1961 the same court reversed a rape conviction because "the testimony of the prosecuting witness lacks verisimilitude.  In such instance the evidence of a prosecutrix should be corroborated by some other testimony, fact or circumstance."  (Qualls, 171 N.E.2d 612 (Ill. 1961))  And why did it lack verisimilitude?  Among other reasons, because the victim, once again, didn't tell the cab driver who drove her home.


The script written by male judges since Matthew Hale's day decreed that women who properly belong in the category of rape victims display certain stereotyped behavior.  For instance, the mere sight of a cab driver makes them start blathering on about every time they've been subjected to sex with some loathsome slug.  Therefore, the judges of 1961 ruled, it followed, as the rain precedes the wet ground, that any woman who doesn't follow the script belonged to the other category, that far larger category of women who use sex to make fools of men.

Still, 1961, that's ages ago.  Lawrence Welk had the Billboard # 3 single for 1961.  "The Twist" and "Duke of Earl" were still a year away.  Surely by, say, 2003, judges were no longer thinking in categories so entirely unrelated to observed experience? 

Why, yes.   That was the very year the Delaware Supreme Court ruled that a "Lord Hale instruction" should no longer be given in rape trials. 

In 2003.

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  • Response
    Welcome to the August 1, 2006 edition of the carnival against sexual violence. Thank you to everyone who nominated a post or who wrote a post against sexual violence whether it

Reader Comments (2)

Feminist are more hateful and harmful to men and boys as young as 6 who are denied mutual respect and rights as feminist demand only women should have. Feminist should clean up their own malicious behavior before talking about acts on women. Feminist are such hypocrits!
July 18, 2006 | Unregistered CommenterBetty Friedan
That piece was nearly impossible to read. As a survivor of child molestation who took nearly 25 years to work up the courage to tell my family, it is deeply sad to recognize how our court system has systematically placed such a heavy burden on the victims and survivors of these violent crimes. It is beyond cruel.

Also, what particular brand of internalized misogyny leads a woman like Miss Betty Friedan to reduce this powerful, historical and legal analysis into the rantings of some sort of anti-male feminist? This is history, people. If it's painful to accept, then say that. We should try really hard to resist the gut-reaction to just discredit and dismiss out of hand things that are unpalatable and challenging to accept. That's not smart.

Specifically, feminists have absolutely no control over the fact that the legal system has been populated by almost exclusively men overseeing cases involving male violence against women and children. Do they? I mean, are "feminists" some sort of flying, caped, heroines who have a super-power that allows them to go back in time and edit history? Wonder power activated to change the make-up of juries, the judgements of court systems, the sentences handed down, the cruel ways in which they have discredited female victims and denied them access to justice? And these feminists, with their giant 'F's blazoned on their chests, do all this simply in order to justify their rabid, unjustified, hatred of men? Jeez. If feminists have that kind of power, sign me up! And send me my caped costume with the super-powers. Because I've got some work to do in 25 years ago!
August 4, 2006 | Unregistered CommenterDannette

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