Joel Jacobsen

In an 1885 rape case, the Indiana Supreme Court approved this instruction as a correct statement of the law:

Evidence has been introduced as to the moral character of the prosecuting witness, and as to her reputation for chastity and virtue.  You are not to understand from this that a rape cannot be committed on a woman of bad moral character.  A woman may be a common prostitute, and may still be the victim of a rape.  This evidence has been introduced only for the purpose of affecting her credibility as a witness, and as a circumstance affecting the probability of the act of intercourse being voluntary or against her will, -- upon the theory that a person of bad moral character is less likely to speak the truth as a witness than one of good moral character, and that woman who is chaste and virtuous will be less likely to consent to an act of illicit carnal intercourse than one who is unchaste.  [State v. Anderson, 4 N.E. 63]

Fast forward 122 years:

A defendant accused of forcing a prostitute at gunpoint to have sex with him and three other men got lucky, so to speak, last week.

A Philadelphia judge dropped all sex and assault charges at his preliminary hearing.

Municipal Judge Teresa Carr Deni instead held the defendant on the bizarre charge of armed robbery for - get this - "theft of services." ...

Deni told me she based her decision on the fact that the prostitute consented to have sex with the defendant.

"She consented and she didn't get paid . . . I thought it was a robbery."

The prostitute, a 20-year-old single mother, agreed to $150 for an hour of oral and vaginal sex on Sept. 20, according to assistant district attorney Rich DeSipio. The arrangements were made through her posting on Craigslist.

She met the defendant, Dominique Gindraw, 19, at what she thought was his house, but which turned out to be an abandoned property in North Philadelphia.

He asked if she'd have sex with his friend, too, and she agreed for another $100.

The friend showed up without money, the gun was pulled and more men arrived.

When a fifth man arrived and was invited to join, DeSipio said, he asked why the girl was crying - and declined. He helped her get dressed so she could leave. ...

"Did she tell you she had another client before she went to report it?" Deni asked me yesterday when we met at a coffee shop.

"I thought rape was a terrible trauma."

A case like this, she said - to my astonishment - "minimizes true rape cases and demeans women who are really raped."

Women who are "really raped," of course, are women who don't perform sex acts for money.  If the woman is "of bad moral character," forcing her at gunpoint to have sex with four men is not rape.  It's theft.  She's not a person - she's candy displayed on the drugstore shelf for kids with sticky fingers to pilfer.

One point about Judge Deni's refusal to follow the law is pretty obvious: she revels in the self-righteous feeling that she has outraged people:

Deni acknowledged that her ruling and remarks would be controversial.

"I know I'm going to get killed on this."

But she said she has to "sleep at night with what I decide."

And on the night of Oct. 4, when she ruled in the preliminary hearing of this case?

"I slept well."

This attitude - self-righteousness bizarrely divorced from any concept of righteousness - is a pretty common judicial syndrome, the third most frequently-encountered of the classic vocational  ailments of judges.  It's not simply a matter of épater les bourgeoisie, though I suspect there's an element of that: you can't get more bourgeois that being a judge, and pretending to be a little bit racy beneath the black robe is titillating.  More than that, though, it's a tell-tale symptom of Post-Civil Rights Era Syndrome, a psychological condition expressed (appropriately enough) in a syllogism:

The southern judges who upheld morality, decency and the grand principles of constitutional government by ruling against segregation in the 1950s and 1960s were heroes, whose example all judges should strive to emulate;

the rulings of those judges were met with great public uproar;

therefore, any judge whose ruling is met with great public uproar is a hero, whose example all judges should strive to emulate.

Well, it makes a great deal of emotional sense, which after all is what counts.  As Oliver Wendell Holmes said, "The life of the law has not been logic; it has been the self-satisfaction of judges."

But how did we get to the point where the Philadelphia of 2007 is so much more reactionary with respect to violence against women than the near-frontier Indiana of the 1880s?

Because our collective consciousness has been so lowered.

DNA "exonerations" almost exclusively free males convicted of sex crimes against females, and it takes little imagination to realize that DNA testing will only rarely point unequivocally to a single perpetrator when the victim had sex with someone else in the day or two before the attack - a category that includes not only prostitutes but, you know, people with boyfriends and husbands.  (See post 246.) 

Liberal Slate has come out foursquare in favor of a return to the pre-1960s doctrine that rape convictions should never be based on the woman's testimony alone.  (See post 280 and post 290.)

A Nebraska judge made national news by prohibiting the victim of a rape from using her own words to tell the jury about what happened to her, on the ground that allowing the female to speak for herself might encourage the jury to convict the male defendant.

In my own New Mexico, a liberal legislature in 1975 removed "absence of consent" from the rape statute, so that any sexual penetration accomplished by force or coercion was criminal.  The idea back then was that in sex crimes, as with all other crimes, the only thing that counted was what the perpetrator did.  But in 2005, the Supreme Court rewrote its uniform jury instructions to reinsert (so to speak) that element, so that today, as 50 years ago, rape is lawful unless the prosecution can prove beyond a reasonable doubt that the victim isn't a slut who was practically begging for it.

There is a common thread to all these developments.

It may still be possible to believe the criminal justice system is not being transformed into an institutionalized backlash against the women's movement.   It requires a lot of faith, though.  Such unshakeable faith can be heartbreaking when manifested by, say, a 4-year-old cancer victim.  It's a little less touching when encountered in an otherwise-healthy adult.

I should add that the Philadelphia Bar Association's chancellor, Jane L. Dalton, has said what ought to be obvious, and was (I believe) the actual point of Judge Deni's ruling, even if the judge hid it from herself: "The victim has been brutalized twice in this case: first by the assailants, and now by the court."