KBR’s “Facts” About Rape Case Are No Such Thing

Megan Carpentier

In 2005, while working for KBR in Iraq, Jamie Leigh Jones was drugged and brutally sexually assaulted. Now KBR has published a website about her chock full of lies, half-truths, and rape-apologist sentiment.

In 2005, while working for KBR in Iraq, Jamie Leigh Jones was drugged and brutally sexually assaulted by a co-worker, Charles Boartz. After she reported the rape and underwent a forensic rape examination, she was escorted to a shipping container outfitted as a room, where guards were posted outside her door and she was prohibited from making phone calls. More than a day into her forced isolation, she convinced a guard to loan her a telephone to call her father in Texas. Her father called their congressman, Ted Poe, who called the State Department who had to send embassy officials to her shipping container to procure her release.

After she was released, her rape kit, which the Army hospital had turned over to KBR and KBR had turned over to the State Department, disappeared. The Pentagon wouldn’t investigate.

The Justice Department isn’t talking to anyone, including Congress, about the case. When Jamie sought civil remedies, KBR told her that her rape, and KBR’s part in it, were part of the conditions of her employment contract and thus any complaints would be subject to mandatory arbitration — and they’d be picking the arbitrator. After 15 months in arbitration, she and her lawyers went to court — in a move fought by KBR — to force the court to determine that rape was not a condition of her employment contract and thus her suit wasn’t covered by the arbitration agreement. The federal courts agreed last year but it wasn’t until two weeks ago that KBR dropped its Supreme Court appeal of the issue, and then only on the basis that Senator Al Franken’s law barring U.S. contractors from forcing rape victims into arbitration might affect their ongoing contracts.

Now Jamie Leigh Jones’ suit against her former employer, KBR, her rapist and her boss for negligence, sexual harassment, retaliation, breach of contract, fraud, assault and battery and intentional affliction of emotional distress can go forward. But KBR isn’t going to roll over and settle the case or admit to any wrong-doing. Instead, they’re backing Jones’ rapist, and using his defense as their own. On their site, they have a “Facts About Jamie Leigh Jones” litigation that is chock full of lies, half-truths, PR spin and rape- apologist sentiment that should make any woman think twice about working for KBR, and should make U.S. taxpayers wonder why their money continues to go to a company that sides with brutal rapists over their victims because it is more financially expedient.

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EEOC Complaint “Facts”

The KBR site indicates that Jones filed an Equal Employment Opportunity Commission sexual harassment complaint, and leaves readers with the impression that said complaint was dismissed. In fact, the letter upholding Jones’ complaint is part of her lawsuit, and reflects that the EEOC ruled in her favor.

In the complaint, Jones charged that KBR assigned her to an all-male barracks and that, within a week, several residents of that barracks drugged and sexually assaulted her. KBR’s response to her EEOC complain was:

1. There were 25 other women in the same barracks.

While this is true, it is important to note what is not said about the barracks: how many people there were in total. Barracks at Camp War Eagle, as it was known at the time, were relatively new, and all military barracks are similar in form: they look, like this barracks at a different camp, to be relatively large dorms. At Camp Cuervo in Baghdad, four such barracks would house two full battalions and a battalion typically consists of between 300 and 1,200 soldiers. So, with Jones being one of 25 women in the building, she was one of 25 women among several hundred men, in a building with small two-person rooms designed around large common areas for socializing and and shared bathrooms.

2. She said yes

Despite the extensive injuries documented as part of her rape kit, KBR’s lawyers’ response to the charge that Jones was raped was that her rapist contends that she consented. They don’t even address the fact that Jones has said she was gang-raped, referring instead to a single “alleged assailant” and they definitely don’t refer to any investigation, to the forensic rape examination or to any of the evidence that she was assaulted: they simply take one of her rapists’ word for it that the brutal assault was consensual, and use that as a legal defense against charges that their actions (or inaction) created a hostile environment.

3. It wasn’t their responsibility to investigate

KBR then alleges that, since the State Department supposedly took over the criminal investigation, they halted their investigation into Jones’ assault. They don’t allege that the State Department forced them to halt their investigation, just that they halted their investigation after being told that the State Department was investigating. But a State Department investigation, criminal or otherwise, and abortive or otherwise, did not need to halt KBR’s internal investigation into the charges that Jones made about conditions, the environment or whether Boartz acted appropriately given his position in the company.

The EEOC found in favor of Jones, and said that she had been subjected to sexual harassment.

KBR Communications Department “Facts”

Because of the media exposure received by the case, as well as government hearings into the case and legislation designed to prohibit government contractors from forcing rape victims into binding arbitration, KBR apparently felt it was time to fight back against the negative publicity that they likely deserve. But rather than describing the steps it goes through to prevent harassment in the workplace — possibly because it doesn’t take very many and attempts to cover up cases of harassment and assault by forcing victims into arbitration — or writing anything about how sorry they are that this happened to Jones, they decided to attack her personal integrity.

Before the Assault, according to KBR

KBR’s first “fact” relates to the EEOC complaint, and Jones’ allegation, since amended in the legal complaint, that she was housed in an all-male barracks. The EEOC complaint is not the lawsuit, but that hardly stops KBR from using the sole positive EEOC result to try to impugn Jones’ reputation. KBR states that she “changed” her allegations in response to KBR’s evidence that the barracks itself was all-male. Jones legal complaint, filed in 2007 after the EEOC investigation was completed, reads as follows:

Jamie was housed, during her off-duty hours, in a two-story living quarters which consisted of a room on a co-ed floor in a predominantly male barracks… Jamie’s room was located at the end of a hall on the second floor. There was no bathroom on that floor – which forced Jones to walk past several men’s rooms in order to get to the women’s restroom on the first floor, enduring “catcalls” and partially dressed men. It is working of noting that the use of alcoholic beverages was permitted at this location at this time, and several of the men were often drinking.

On July 27, 2007 [sic], Jamie complained to several Halliburton and KBR managers, employees, servants, agent, officers and/or representatives about the sexually hostile living conditions and asked to be moved to a safer location. This report was made to Houston supervisory personnel, and she was advised to “go to the spa.”

KBR claims that Jamie sent emails to co-workers in Iraq asking how to get moved to private living quarters without mentioning that she felt sexually harassed as “evidence” that Jamie wasn’t harassed. Of course, KBR’s “facts” make no mention of her report to Houston that she was being harassed, and she was under no obligation to mention to people with whom she’d started working two days prior to her complaint to headquarters that she felt like she was being harassed in her living quarters. In fact, given that she’d been in the country less than a week, she was likely more than cognizant that the people who could help her get away from the men who harassed her were longer-term colleagues of and perhaps even friends with the men from whom she wanted to escape.

The Assault, According to KBR

Perhaps the most egregious part of KBR’s “facts” site is the part of the site designed to undermine Jones’ credibility about her rape case. Nauseatingly, it reads like a defense of her rapist and an effort by KBR to assert every rape apologist trope in the book, ranging from the implication that Jones is lying to “she was asking for it.”

Before getting into what KBR disgustingly claims are the “facts” about Jones’ assault, her lawsuit chronicles both her memory of the events and the medical results of her rape examination.

Tragically, on the evening on July 28, 2007 [sic], during her off-duty hours, Jamie was drugged (by what was believed to be Rohypnol) and brutally raped by, on information and belief, several Halliburton/KBR firefighters, including defendant, Charles Boartz, while she was in her room in the barracks. When she awoke the next morning still affected by the drug, she found her body naked and severely bruised, with lacerations to her vagina and anus, blood running down her leg, her breast implants were ruptured, and her pectoral muscles torn – which would later require reconstructive surgery. Upon walking to the rest room, she passed out again. When she returned to the living area, she found Charles Boartz lying in her bottom bed. She asked him what had happened, and he confessed to having unprotected sex with her. Jamie reported the rape to the [sic] Pete Arroyo, one of the operations personnel, who then took her to KBR medical personnel.

It is interesting to note that nowhere on KBR’s fact site does Boartz’s name appear: his identity is, to this day, shielded by his employer as they attempt to sully the name of his victim. The EEOC found her story of rape credible, in no small part because of the extent of her injuries from what was an obviously brutal assault. Jones came to know that she’d been gang-raped because the doctor who performed her examination told her so.

KBR, however, thinks it’s important to note “discrepancies” in Jones’s account of her sexual assault and the events that preceded it, presumably because they believe those so-called discrepancies will negate the fact of her sexual assault and prove them innocent.

Their first line of attack is that when Jones first reported the assault to them — the morning after she woke up covered in blood and didn’t remember anything — she said the men had come to her room and assaulted her. More recently, she said that she began the evening socializing with a few co-workers. This, of course, is a “fact” that KBR considers mitigates her testimony.

Also in Congressional testimony (and in several media interviews), Ms. Jones stated she only took two sips from a drink. However, several witnesses present at the social gathering outside the barracks observed her having several drinks and flirting with one particular firefighter whom she had socialized with the night before. She was also seen leaving the gathering with this firefighter.

Jones, whose lawsuit specifically states that she believes she was drugged, might legitimately not remember having more than a couple sips of an adulterated drink, and might well have been given more than one beverage. Given that people dosed with drugs like Rohypnol, the original “date rape drug,” often have difficulty standing, her behavior as the drug took affect could have been taken as “flirtatious” by people unaware that she’d been drugged, and she would have had to have “left” with the firefighter — also known as Charles Boartz, not that KBR lists his name — because of the drug.

But, KBR’s communications department makes no reference to the use of drugs in Jones’ assault, and explicitly encourages the reader to believe that Jones went to a party, had a few drinks and willingly left the gathering with Boartz — which, even if it were true, would not mean that she willingly had sex with him. It is a rare (if not non-existent) consensual sexual encounter that leaves a woman permanently disfigured and in need of reconstructive surgery. The deliberate implication of KBR’s recasting of the events the night of the assault is to indicate that Jones did something wrong, and is somehow at fault.

That would, of course, be a terrible, rape apologist implication at best — but KBR gets worse with its closing paragraph.

The firefighter admits that he and Ms. Jones had consensual sex. However, he is certain that nobody else was present or had sex with Ms. Jones that night.

Yes, one of the “facts” about the case is that the man Jones accuses of her brutal, disfiguring sexual assault, Charles Boartz ,“admits” that he had “consensual” sex with Jones. KBR calls Jones’ account of sexual assault an “allegation,” but Boartz’s contention that it was a consensual encounter is an “admission” as part of its “facts” about the case. They might not legally be able to outright say that Jones is lying about being sexually assaulted, but that’s the implication of their statements about the case.

After the Assault, According to KBR

KBR then contends that the “fact” that Jones didn’t act enough like a rape victim means something — the implication being that it means she wasn’t “really” raped. They contend that, having woken up “with” Boartz, she didn’t run screaming. Jones states in the lawsuit that she woke up, still groggy from the drugs, covered in blood and went to the bathroom, only to pass out again. When she returned to her room, she found Boartz in one of the two bunks where he claimed to have had consensual sex with her, despite the injuries far more consistent with rape.

KBR then says, without naming the co-worker who is alledging things about her, that Jones didn’t appear to be injured to a co-worker that drove her to work, and said that she thought Boartz would end his relationship with his girlfriend for her. It was only later — according to KBR — that she admitted that she woke up, injured, and was taken for medical treatment.

Of course, many rape victims, especially those on whom rapists used drugs, don’t immediately report being assaulted. Many victims need time to process what happened to them before they can think about the legal processes. Once you take the victim-shaming spin out of the version of events presented by the increasingly-unreliable KBR, it appears that this is what might have happened to Jones, if KBR’s story is even remotely true.

KBR additionally alledges that it’s a “fact” that the doctor who performed the rape examination on Jones would not have told her with any certainty that she had been raped — despite the tearing, bleeding and damage to her breast implants and pectoral muscles — and would not have told her that there were multiple semen contributions. While it is true that a doctor performing a rape kit would not necessarily be able to tell that the semen was from multiple donors without further testing for DNA and blood type, he would have been able to tell her there were multiple contributions (since it was found in multiple orifices). The doctor might have assumed from the sheer brutality of the assault and his experience as a medical professional that only an attack involving multiple men could result in such horrific injuries. KBR’s “fact” doesn’t mean she wasn’t raped by multiple men, nor does it clear up any so-called discrepancy: but it is one more way to spin certain parts of the history of events in the case to imply that the victim, rather than the perpetrator, is being less than forthcoming

The rest of the document is intended to further the impression that Jones is the one not telling the truth. In the guise of disputing Jones’ assertions that she was held against her will in a trailer monitored by armed guards and asked to drop her sexual assault case, KBR says the “facts” are that she wasn’t held against her will, was allowed to make phone calls and her father was informed of her whereabouts at all times. They don’t explain why, if this was actually the case, that she called her father asking for help to get out of there, or how the State Department only sent its people to find her after documented intervention by Congressman Ted Poe (R-TX), which was spurred by her father’s phone call. And while KBR asserts that it is a “fact” that Congressman Poe had nothing to do with Jones’ return to the United States, Congressman Poe’s office vigorously disputes that allegation. Congressman Poe’s office confirmed that they have a documented case file going back to Jones’ father’s first conversation with a case worker in July 2005. They insist, and have evidence to back it up, that they were the ones in contact with State Department and stayed that way (helping keep her father informed of her whereabouts) until Jones was returned to the States.

The Bottom Line

KBR’s unsubstantiated allegations, like Charles Boartz’s defense, are presented “fact” and Jones’ recounting of events are written off as, at best, just unsubstantiated “allegations” and, at worst, deliberate lies. They do this despite the fact that the sole legal ruling in the case — the EEOC — found her charges substantial and believable enough to rule in her favor, giving her version of events more legal standing to be called fact that KBR’s rumors, innuendos, falsehoods and rape apologist claptrap.

KBR obviously wants the average reader to draw one conclusion from these “facts:” that Jones wasn’t “really” raped. Studies of attitudes about rape often show that more than half people believe a victim is at least partially responsible for their own sexual assault if they drank too much, left with their attacker, acted flirtatiously or even just accepted a drink from the person who later assaulted them — coincidentally, all supposed “facts” of the case that KBR is publicizing. Rather than arguing about whether KBR did or did not do anything about the hostile environment for women contractors, they apparently plan on litigating the very fact of Jones’ assault, both in court and in the court of public opinion, in order to prove their own innocence.

Nonetheless, none of the “facts” presented by KBR mitigate either their responsibility for the hostile environment or explain away Jones’ sexual assault. In fact, the one legal authority to rule so far in this case on that, the EEOC, found her charges credible and upheld them.

Of course, to counter the lawsuit, KBR would only have to prove that its actions or inaction didn’t lead to a hostile work environment or directly contribute to Jones’ sexual assault, and that nothing they did was intended to retaliate against Jones for insisting on reporting her assault. There’s no legal need for KBR to defend Boartz’s actions or defend his rape of Jones in order to win the part of the lawsuit that pertains to them. KBR communications director Heather Browne, whose name is affixed to the “fact” sheet, in fact confirmed that Boartz “separated” from the company in June 2006 (albeit more than a year after he was accused of brutally assaulting a co-worker). But rather than win on the merits of their actions — if there are any — they’ve chosen to try to fight the victim and deny the very fact of her obvious assault by impugning her personal integrity.

It isn’t that KBR doesn’t know that it is wrong to impugn the character of people as part of a legitimate legal debate. After an article on this case appeared on Jezebel last week, several readers wrote Heather Browne personal letters questioning her integrity, the veracity of the “fact” sheet and her motives for writing it. Those letters were answered by Randy Lawton, the Vice President of Security for KBR. He explained to at least two readers that personal attacks are “inappropriate.”

Further, it is inappropriate to personally attack the company’s communication director as part of your forum to voice your opinion. It is the role of any communications director to speak on behalf of the company, honestly conveying its position with out compromise of personal integrity. As such, that individual’s personal character should not be questioned or maligned, simply because he or she is doing their job.

In addition to admitting that KBR’s “facts” were nothing more than the “position” of the company, he noted that personal attacks on people who are doing their job — even if that job appears to be making personal attacks on rape victims in order to save the company money — are considered inappropriate by KBR. It is too bad KBR doesn’t also take the position that it is inappropriate to malign the integrity of a former employee who was just trying to do her job when she was brutally sexually assaulted.

Commentary Violence

This is Not The Story I Wanted—But It’s My Story of Rape

Dani Kelley

Writer Dani Kelley thought she had shed the patriarchal and self-denying lessons of her conservative religious childhood. But those teachings blocked her from initially admitting that an encounter with a man she met online was not a "date" that proved her sexual liberation, but an extended sexual assault.

Content note: This article contains graphic descriptions of sexual violence.

The night I first truly realized something was wrong was supposed to be a good night.

A visiting friend and I were in pajamas, eating breakfast food at 10 p.m., wrapped in blankets while swapping stories of recent struggles and laughs.

There I was, animatedly telling her about my recently acquired (and discarded) “fuck buddy,” when suddenly the story caught in my throat.

When I finally managed to choke out the words, they weren’t what I expected to say. “He—he held me down—until, until I couldn’t—breathe.”

Hearing myself say it out loud was a gut-punch. I was sobbing, gasping for breath, arms wrapped as if to hold myself together, spiraling into a terrifying realization.

This isn’t the story I wanted.

Unlearning My Training

I grew up in the Plymouth Brethren movement, a small fundamentalist Christian denomination that justifies strict gender roles through a literal approach to the Bible. So, according to 1 Corinthians 11:7, men are considered “the image and glory of God,” while women are merely “the glory of man.” As a result, women are expected to wear head coverings during any church service, among other restrictions that can be best summed up by the apostle Paul in 1 Timothy 2:11-12: Women are never allowed to have authority over men.

If you’ve spent any number of years in conservative Christianity like I did, you’re likely familiar with the fundamentalist tendency to demonize that which is morally neutral or positive (like premarital sex or civil rights) while sugar-coating negative experiences. The sugar-coating can be twofold: Biblical principles are often used to shame or gaslight abuse victims (like those being shunned or controlled or beaten by their husbands) while platitudes are often employed to help members cope with “the sufferings of this present time,” assuring them that these tragedies are “not worthy to be compared with the glory that is to be revealed to us.”

In many ways, it’s easy to unlearn the demonization of humanity as you gain actual real-world experience refuting such flimsy claims. But the shame? That can be more difficult to shake.

The heart of those teachings isn’t only present in this admittedly small sect of Christianity. Rather, right-wing Western Christianity as a whole has a consent problem. It explicitly teaches its adherents they don’t belong to themselves at all. They belong to God (and if they’re not men, they belong to their fathers or husbands as well). This instilled lack of agency effectively erases bodily autonomy while preventing the development of healthy emotional and physical boundaries.

On top of that, the biblical literalism frequently required by conservative Christianity in the United States promotes a terrifying interpretation of Scripture, such as Jeremiah 17:9. The King James Version gives the verse a stern voice, telling us that “the heart is deceitful above all things and desperately wicked.” If we believe this, we must accept that we’re untrustworthy witnesses to our own lives. Yet somehow, we’re expected to rely on the authority of those the Bible deems worthy. People like all Christians, older people, and men.

Though I’ve abandoned Christianity and embraced feminist secular humanism, the culture in which I grew up and my short time at conservative Bob Jones University still affect how I view myself and act in social situations. The lessons of my formative years created a perfect storm of terrible indoctrination: gender roles that promoted repressed individuality for women while encouraging toxic masculinity, explicit teaching that led to constant second-guessing my ability to accurately understand my own life, and a biblical impetus to “rejoice in my suffering.”

Decades of training taught me I’m not allowed to set boundaries.

But Some Habits Die Hard

Here’s the thing. At almost 30, I’d never dated anyone other than my ex-husband. So I thought it was about time to change that.

When I found this man’s online profile, I was pleasantly surprised. It was full of the kind of geekery I’m into, even down to the specific affinity for eclectic music. I wrote to him, making sure my message and tone were casual. He responded instantly, full of charisma and charm. Within hours, we’d made plans to meet.

He was just as friendly and attentive in person. After wandering around town, window-shopping, and getting to know one another, he suggested we go to his favorite bar. As he drank (while I sipped water), he kept paying me compliments, slowly breaking the touch barrier. And honestly, I was enthralled—no one had paid attention to me like this in years.

When he suggested moving out to the car where we could be a little more intimate, I agreed. The rush of feeling desired was intoxicating. He seemed so focused on consent—asking permission before doing anything. Plus, he was quite straightforward about what he wanted, which I found exciting.

So…I brought him home.

This new and exciting “arrangement” lasted one week, during which we had very satisfying, attachment-free sex several times and after which we parted ways as friends.

That’s the story I told people. That’s the story I thought I believed. I’d been freed from the rigid expectations and restraints of my youth’s purity culture.

Now. You’re about to hear me say many things I know to be wrong. Many feminists or victim advocates almost certainly know the rationalizations and reactions I’m about to describe are both normal responses to abuse and a result of ingrained lies about sex in our culture. Not to mention evidence of the influence that right-wing conservatism can have on shaping self-actualization.

As I was telling people the story above, I left out important details. Were my omissions deliberate? An instinctive self-preservation mechanism? A carryover from draconian ideals about promiscuity?

When I broke down crying with my friend, I finally realized I’d kept quiet because I couldn’t bear to hear myself say what happened.

I’m a feminist, damn it. I left all the puritanical understandings of gender roles behind when I exited Christianity! I even write about social justice and victim advocacy. I ought to recognize rape culture!

Right?

If only being a socially aware feminist was enough to erase decades of socialization as a woman within rape culture—or provide inoculation against sexual violence.

That first night, once we got to my car, he stopped checking in with me. I dismissed the red flag as soon as I noticed it, telling myself he’d stop if I showed discomfort. Then he smacked my ass—hard. I pulled away, staring at him in shocked revulsion. “Sorry,” he replied, smirking.

He suggested that we go back to my house, saying we’d have more privacy than at his place. I was uneasy, unconvinced. But he began passionately kissing, groping, petting, and pleading. Against my better judgment, I relented.

Yet, in the seclusion of my home, there was no more asking. There was only telling.

Before I knew it, I’d been thrown on my back as he pulled off my clothes. I froze. The only coherent thought I could manage was a weak stammer, asking if he had a condom. He seemed agitated. “Are you on birth control?” That’s not the point! I thought, mechanically answering “yes.”

With a triumphant grin and no further discussion, he forced himself into me. Pleasure fought with growing panic as something within me screamed for things to slow down, to just stop. The sensation was familiar: identical to how I felt when raped as a child.

I frantically pushed him off and rolled away, hyperventilating. I muttered repeatedly, “I need a minute. Just give me a minute. I need a minute.”

“We’re not finished yet!” he snapped angrily. As he reached for me again, I screeched hysterically, “I’M NOT OK! I NEED A MINUTE!”

Suddenly, he was kind and caring. Instead of being alarmed, I was strangely grateful. So once I calmed down, I fucked him. More than once.

It was—I told myself—consensual. After all, he comforted me during a flashback. Didn’t I owe him that much?

Yet, if I didn’t do what he wanted, he’d forcefully smack my ass. If I didn’t seem happy enough, he’d insistently tell me to smile as he hit me again, harder. He seemed to relish the strained smile I would force on command.

I kept telling myself I was okay. Happy, even. Look at how liberated I was!

All week, I was either at his beck and call or fighting suicidal urges. Never having liked alcohol before, I started drinking heavily. I did all I could to minimize or ignore the abuse. Even with his last visit—as I fought to breathe while he forcefully held my head down during oral sex, effectively choking me—I initially told myself desperately that surely he wouldn’t do any of this on purpose.

The Stories We Tell and The Stories That Just Are

Reflecting on that week, I’m engulfed in shame. I’m a proud feminist. I know what coercion looks like. I know what rape looks like. I know it’s rarely a scary man wearing a ski mask in a back alley. I’ve heard all the victim-blaming rape apologia you have: that women make up rape when they regret consenting to sex, or going on a date means sex is in the cards, or bringing someone home means you’re game for anything.

Reality is, all of us have been socialized within a patriarchal system that clouds our experiences and ability to classify them. We’re told to tend and befriend the men who threaten us. De-escalation at any cost is the go-to response of almost any woman I’ve ever talked to about unwanted male attention. Whatever will satiate the beast and keep us safe.

On top of that, my conservative background whispered accusations of being a Jezebel, failing to safeguard my purity, and getting exactly what I deserve for forsaking the faith.

It’s all lies, of course. Our culture lies when it says that there are blurred lines when it comes to consent. It violates our personhood when it requires us to change the narrative of the violence enacted against us for their own comfort. Right-wing Christianity lies when it says we don’t belong to ourselves and must submit to the authority of a religion or a gender.

Nobody’s assaulted because they weren’t nice enough or because they “failed” to de-escalate. There’s nothing we can do to provoke such violence. Rape is never deserved. The responsibility for sexual assault lies entirely with those who attack us.

So why was the story I told during and after that ordeal so radically and fundamentally different from what actually happened? And why the hell did I think any of what happened was OK?

Rape myths are so ingrained in our cultural understanding of relationships that it was easier for me to believe nothing bad had happened than to accept the truth. I thought if I could only tell the story I wanted it to be, then maybe that’s what really happened. I thought if I was willing—if I kept having him over, if I did what he ordered, if I told my friends how wonderful it was—it would mean everything was fine. It would mean I wasn’t suffering from post-traumatic stress or anxiety about defying the conservative tenets of my former political and religious system.

Sometimes, we tell ourselves the stories we want to hear until we’re able to bear the stories of what actually happened.

We all have a right to say who has what kind of access to our bodies. A man’s masculinity gives him no authority over anyone’s sexual agency. A lack of a “no” doesn’t mean a “yes.” Coercion isn’t consent. Sexual acts performed without consent are assault. We have a right to tell our stories—our real stories.

So, while this isn’t the story I wanted, it’s the story that is.

I was raped.

Analysis Law and Policy

Justice Kennedy’s Silence Speaks Volumes About His Apparent Feelings on Women’s Autonomy

Imani Gandy

Justice Anthony Kennedy’s obsession with human dignity has become a hallmark of his jurisprudence—except where reproductive rights are concerned.

Last week’s decision in Whole Woman’s Health v. Hellerstedt was remarkable not just for what it did say—that two provisions in Texas’s omnibus anti-abortion law were unconstitutional—but for what it didn’t say, and who didn’t say it.

In the lead-up to the decision, many court watchers were deeply concerned that Justice Anthony Kennedy would side with the conservative wing of the court, and that his word about targeted restrictions of abortion providers would signal the death knell of reproductive rights. Although Kennedy came down on the winning side, his notable silence on the “dignity” of those affected by the law still speaks volumes about his apparent feelings on women’s autonomy. That’s because Kennedy’s obsession with human dignity, and where along the fault line of that human dignity various rights fall, has become a hallmark of his jurisprudence—except where reproductive rights are concerned.

His opinion on marriage equality in Obergefell v. Hodges, along with his prior opinions striking down sodomy laws in Lawrence v. Texas and the Defense of Marriage Act in United States v. Windsor, assured us that he recognizes the fundamental human rights and dignity of LGBTQ persons.

On the other hand, as my colleague Jessica Mason Pieklo noted, his concern in Schuette v. Coalition to Defend Affirmative Action about the dignity of the state, specifically the ballot initiative process, assured us that he is willing to sweep aside the dignity of those affected by Michigan’s affirmative action ban in favor of the “‘dignity’ of a ballot process steeped in racism.”

Meanwhile, in his majority opinion in June’s Fisher v. University of Texas, Kennedy upheld the constitutionality of the University of Texas’ affirmative action program, noting that it remained a challenge to this country’s education system “to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity.”

It is apparent that where Kennedy is concerned, dignity is the alpha and the omega. But when it came to one of the most important reproductive rights cases in decades, he was silent.

This is not entirely surprising: For Kennedy, the dignity granted to pregnant women, as evidenced by his opinions in Planned Parenthood v. Casey and Gonzales v. Carhart, has been steeped in gender-normative claptrap about abortion being a unique choice that has grave consequences for women, abortion providers’ souls, and the dignity of the fetus. And in Whole Woman’s Health, when Kennedy was given another chance to demonstrate to us that he does recognize the dignity of women as women, he froze.

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He didn’t write the majority opinion. He didn’t write a concurring opinion. He permitted Justice Stephen Breyer to base the most important articulation of abortion rights in decades on data. There was not so much as a callback to Kennedy’s flowery articulation of dignity in Casey, where he wrote that “personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education” are matters “involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy.” (While Casey was a plurality opinion, various Court historians have pointed out that Kennedy himself wrote the above-quoted language.)

Of course, that dignity outlined in Casey is grounded in gender paternalism: Abortion, Kennedy continued, “is an act fraught with consequences for others: for the woman who must live with the implications of her decision; for the persons who perform and assist in the procedures for the spouse, family, and society which must confront the knowledge that these procedures exist, procedures some deem nothing short of an act of violence against innocent human life; and, depending on one’s beliefs, for the life or potential life that is aborted.” Later, in Gonzales, Kennedy said that the Partial-Birth Abortion Ban “expresses respect for the dignity of human life,” with nothing about the dignity of the women affected by the ban.

And this time around, Kennedy’s silence in Whole Woman’s Health may have had to do with the facts of the case: Texas claimed that the provisions advanced public health and safety, and Whole Woman’s Health’s attorneys set about proving that claim to be false. Whole Woman’s Health was the sort of data-driven decision that did not strictly need excessive language about personal dignity and autonomy. As Breyer wrote, it was a simple matter of Texas advancing a reason for passing the restrictions without offering any proof: “We have found nothing in Texas’ record evidence that shows that, compared to prior law, the new law advanced Texas’ legitimate interest in protecting women’s health.”

In Justice Ruth Bader Ginsburg’s two-page concurrence, she succinctly put it, “Many medical procedures, including childbirth, are far more dangerous to patients, yet are not subject to ambulatory-surgical-center or hospital admitting-privileges requirements.”

“Targeted Regulation of Abortion Providers laws like H.B. 2 that ‘do little or nothing for health, but rather strew impediments to abortion,’ cannot survive judicial inspection,” she continued, hammering the point home.

So by silently signing on to the majority opinion, Kennedy may simply have been expressing that he wasn’t going to fall for the State of Texas’ efforts to undermine Casey’s undue burden standard through a mixture of half-truths about advancing public health and weak evidence supporting that claim.

Still, Kennedy had a perfect opportunity to complete the circle on his dignity jurisprudence and take it to its logical conclusion: that women, like everyone else, are individuals worthy of their own autonomy and rights. But he didn’t—whether due to his Catholic faith, a deep aversion to abortion in general, or because, as David S. Cohen aptly put it, “[i]n Justice Kennedy’s gendered world, a woman needs … state protection because a true mother—an ideal mother—would not kill her child.”

As I wrote last year in the wake of Kennedy’s majority opinion in Obergefell, “according to [Kennedy’s] perverse simulacrum of dignity, abortion rights usurp the dignity of motherhood (which is the only dignity that matters when it comes to women) insofar as it prevents women from fulfilling their rightful roles as mothers and caregivers. Women have an innate need to nurture, so the argument goes, and abortion undermines that right.”

This version of dignity fits neatly into Kennedy’s “gendered world.” But falls short when compared to jurists internationally,  who have pointed out that dignity plays a central role in reproductive rights jurisprudence.

In Casey itself, for example, retired Justice John Paul Stevens—who, perhaps not coincidentally, attended the announcement of the Whole Woman’s Health decision at the Supreme Court—wrote that whether or not to terminate a pregnancy is a “matter of conscience,” and that “[t]he authority to make such traumatic and yet empowering decisions is an element of basic human dignity.”

And in a 1988 landmark decision from the Supreme Court of Canada, Justice Bertha Wilson indicated in her concurring opinion that “respect for human dignity” was key to the discussion of access to abortion because “the right to make fundamental personal decision without interference from the state” was central to human dignity and any reading of the Canadian Charter of Rights and Freedoms 1982, which is essentially Canada’s Bill of Rights.

The case was R. v. Morgentaler, in which the Supreme Court of Canada found that a provision in the criminal code that required abortions to be performed only at an accredited hospital with the proper certification of approval from the hospital’s therapeutic abortion committee violated the Canadian Constitution. (Therapeutic abortion committees were almost always comprised of men who would decide whether an abortion fit within the exception to the criminal offense of performing an abortion.)

In other countries, too, “human dignity” has been a key component in discussion about abortion rights. The German Federal Constitutional Court explicitly recognized that access to abortion was required by “the human dignity of the pregnant woman, her… right to life and physical integrity, and her right of personality.” The Supreme Court of Brazil relied on the notion of human dignity to explain that requiring a person to carry an anencephalic fetus to term caused “violence to human dignity.” The Colombian Constitutional Court relied upon concerns about human dignity to strike down abortion prohibition in instances where the pregnancy is the result of rape, involves a nonviable fetus, or a threat to the woman’s life or health.

Certainly, abortion rights are still severely restricted in some of the above-mentioned countries, and elsewhere throughout the world. Nevertheless, there is strong national and international precedent for locating abortion rights in the square of human dignity.

And where else would they be located? If dignity is all about permitting people to make decisions of fundamental personal importance, and it turns out, as it did with Texas, that politicians have thrown “women’s health and safety” smoke pellets to obscure the true purpose of laws like HB 2—to ban abortion entirely—where’s the dignity in that?

Perhaps I’m being too grumpy. Perhaps I should just take the win—and it is an important win that will shape abortion rights for a generation—and shut my trap. But I want more from Kennedy. I want him to demonstrate that he’s not a hopelessly patriarchal figure who has icky feelings when it comes to abortion. I want him to recognize that some women have abortions and it’s not the worst decision they’ve ever made or the worst thing that ever happened to him. I want him to recognize that women are people who deserve dignity irrespective of their choices regarding whether and when to become a mother. And, ultimately, I want him to write about a woman’s right to choose using the same flowery language that he uses to discuss LGBTQ rights and the dignity of LGBTQ people.  He could have done so here.

Forcing the closure of clinics based on empty promises of advancing public health is an affront to the basic dignity of women. Not only do such lies—and they are lies, as evidenced by the myriad anti-choice Texan politicians who have come right out and said that passing HB 2 was about closing clinics and making abortion inaccessible—operate to deprive women of the dignity to choose whether to carry a pregnancy to term, they also presume that the American public is too stupid to truly grasp what’s going on.

And that is quintessentially undignified.