Misogyny and the Law: Confronting America’s Rape Culture

By Priya Dieterich (guest blogger)

Eariler this month in New Delhi, the trial began for the six men accused of beating and gang-raping a young woman who later died from the injuries she sustained. Immediately following this grotesque crime in December, Indians took to the streets in droves to express their outrage and insist that the men be charged and prosecuted for their crimes. The American press reported the story as India’s failure to protect women, asking whether the Indian justice system is up to the task of prosecuting the men for their crimes.

It was an attack on “them,” but as author and video blogger John Green says, “there is no ‘them,’ there are only facets of ‘us.’” Rape is not solely or uniquely an Indian problem or a problem of the “third world.” It is a global scourge to which the United States is hardly immune. The U.S. purports to have a higher functioning legal system and lower levels of police corruption, but it is failing just as miserably to prevent and punish rape as its Indian counterpart.

A recent documentary film, the Oscar-nominated “The Invisible War,” tells the catastrophic story of sexual assault in the American military. A.O. Scott of The New York Times summarizes what the film uncovered:

The Defense Department estimates that 22,800 violent sex crimes were committed in the military last year alone, and the filmmakers calculate that 1 in 5 women in military service has been the victim of sexual assault. “The Invisible War” presents other numbers, mostly from the military’s own records, that make the picture of pervasive abuse even more alarming. Many crimes are never reported — this is true of rape in civilian life as well as in the military — but among those that are, only a tiny fraction are dealt with in any meaningful way. A culture of impunity has flourished, and the film suggests that the military has mostly responded with pathetic attempts at prevention (through posters and public service announcements) and bureaucratic rituals of self-protection.

The producers of “The Invisible War” are open about their film's political agenda: they seek not only to shed light on the sexual assault culture in the U.S. military but to effect fundamental change. As Alyssa Rosenberg reports at the Daily Beast, there are signs they may be meeting their target:

[S]ince The Invisible War’s release, federal action on sexual assaults in the military has instead accelerated. On January 23, the House Armed Services Committee held hearings on the investigation into Lackland Air Force Base, the site of the Air Force’s basic training: a staff sergeant stationed there was convicted of rape and sexual assault last summer, and 32 instructors are alleged to have sexually coerced or formed relationships with their students that violate military regulations. The New York Times wrote “that they are doing so is in large part a tribute to” The Invisible War, though Dick said he was frustrated that so many congressmen left the hearing to attend a vote, skipping the part of the program where assault survivors testified about their experiences.

As national leaders begin to come to terms with the military rape scandal, they risk mistaking sexual assault as primarily a military problem. It isn’t. We are not only talking about a deficit in military justice. The civilian legal system that is supposed to protect women is permeated with rape-apologists and rape-denialists. Though sexual assaults have fallen since the mid-1990s, a rape occurs every two minutes in the United States. Rape is still a scandalously under-reported crime, with over half of assaults never reported to the authorities. The criminal justice system does not prescribe consistent consequences for aggressors: only 3 of every 100 rapists spends even a day in prison. 

This data finds horrific illustration in a recent case in Steubenville, Ohio. A girl was gang raped and dragged, unconscious, from party to party by a group of high school boys and the authorities largely covered up the story because it was ugly and uncomfortable to talk about. It came to light, even warranting a New York Times article, only because of one blogger, Alexandria Goddard, who refused to let the incident be brushed under the rug. Goddard wrote about the crime for months before mainstream media picked up the story (and it is worth noting that she was then sued by a Steubenville football player for doing so).

While the victim thankfully survived this attack, the atrocity of these crimes is on par with the rape in New Delhi. Its brutality is exacerbated by the fact that throughout the night the boys tweeted about the rape and posted videos, including one uncovered by the hacker group Anonymous, that is a painfully disgusting 12 minutes of one of the accused boys laughing about “how dead” and “how raped” they thought the girl was. Why, with this story developing almost simultaneously to the New Delhi story, are we not having a national discussion about the American culture of rape and how to address it?

The institutionalized rape culture in the United States goes well beyond Steubenville. In an even more blatant display of our legal system’s failings, a judge in Nebraska in 2008 prohibited a woman from using the words “rape” or “sexual assault” or describing herself as a “victim” or the defendant as an “assailant,” in her testimony against her alleged rapist. The judge, who is not the only one to have issued orders of this manner, explained his decision by citing the defendant’s right to a presumption of innocence. This reasoning is absurd, of course: a judge would never prohibit a witness from using the word “thief” in the case of an alleged theft. But the judge’s order speaks volumes about our society’s tendency to excuse rape, belittle rape accusations, blame the victim and protect the criminal. When men observe a legal system that refuses to take rape charges seriously, coupled with a fetishizing of aggression, rape is encouraged, not deterred. The institutionalization of misogyny in the courts, as well as slut-shaming attitudes in society, result in the shockingly low percentage of reported rapes, despite the fact that 1 in 5 women in the U.S. say they have been sexually assaulted.

Our failure to provide justice to women who are victims of gender-based violence is not confined to situations involving rape. A strikingly parallel situation can be seen in the way our society tries battered women in courts of law. In a 1984 New Jersey Supreme Court ruling, expert testimony on battered woman’s syndrome was found to be relevant to the case of a woman who killed her husband during a fight after enduring seven years of abuse. Statements by the prosecution in that case were condescending to the defendant and blatantly misogynistic, but the ruling could have given one hope that this type of injustice would no longer be tolerated. Apparently that hope would be naïve and ungrounded: battered women are still mistreated by the judicial system and unfairly prosecuted. In a murder trial that began in 2005, Nancy Seaman was convicted of premeditated murder and sentenced to life in prison. When a U.S. District judge ruled for a retrial on the grounds that the defense should be able to construct a self-defense claim based on battered woman’s syndrome, a federal appeals court overturned his decision, explaining that battered woman’s syndrome is not a defense under Michigan law. The Michigan Women’s Justice & Clemency Project conducted a study of homicide convictions in Oakland County from 1986 to 1988, concluding that “Overall, a white female defendant with no criminal history who was convicted by a jury of killing a white person could expect an average sentence of 10 to 30 years. However, if the woman was a victim of domestic violence, her predicted sentence increased to life.” That’s blaming the victim with a vengeance.

What’s going on in these courtrooms? Why are battered women treated with hostility and discrimination in our courts of law? Why are rape victims frequently ignored and disparaged? Institutional attitudes toward spousal abuse and rape are both rooted in a patriarchal, misogynist culture. In each case society makes similar, inaccurate, unfair judgments of the women in question, and the legal system accepts rather than corrects them. The assumption that battered women are masochistic is directly paralleled by the accusation that a rape victim was “asking for it.” The two issues have sparked different levels of mainstream media coverage — there is an active feminist movement speaking out about rape culture that gets some attention, while battered women’s cases receive little — but they are inextricably linked to each other and to entrenched and institutionalized misogyny.

We must acknowledge that violence against women is a product of our society and everyone is conditioned by it. In modern American culture, the problematic gender relations and gender norms that foster violence against women are the very same influences that condition jurors, judges, lawmakers and observers to perceive this violence against women as normal. James R. Mahalik, who studies gender norms in society, has developed an index of 11 Masculine Norms, among them Violence, Dominance, Emotional Control, and Power over Women. Society defines and elevates these characteristics in men, fostering intimate partner violence (usually of a man against a woman), and cultivating a culture of rape. Consider any situation wherein one person attacks another: as soon as the assailant is identified as male and the victim as female, we are conditioned to normalize the masculine aggression (even as we frown upon it) and identify faults of the woman’s character that may have led her to this fate.

Addressing the issue of gender-differentiated treatment by the law is complicated. We must strike a balance between our obligation to litigate within our far-from-perfect reality and our obligation to foster social progress. When we give priority to the latter, under the pretense that our judicial system can handle these cases in a gender-neutral way, we fail to uphold either of these obligations. We are kidding ourselves if we assume that the average American is capable of fairly assessing a battered woman or a rape victim, or if we are confident that our legal system is capable of objectively adjudicating cases involving these women.

Mahalik’s research on masculine norms contains few surprises; we see gender norms enacted and reinforced every day. Despite the pervasiveness of these norms, we consistently fail to understand the situations in which they do our society a disservice: when they prevent victims of gender-based violence from attaining justice. Refusing to address these issues in public conversation and in courtrooms prevents us from correcting these injustices. There is no hope of progressing away from this reality as long as we systematically deny it. We cannot continue to operate under a pretense of gender equality and an assumption of a well functioning judicial system. Instead, we should be looking inwards just as critically as we have been looking outwards to New Delhi.

Rather than admiring from afar the protesters in India, and congratulating the national leaders who have begun to address sexual violence in the U.S. military, we need to echo these efforts in opposition to the broader problem of misogyny in the American legal culture.

Priya Dieterich is pursuing an Associate of Arts degree at Bard High School Early College-Manhattan. 

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