When allegations first surfaced that several Stuebenville High School football players had been involved in the rape of a young woman from a neighboring town, Steubenville High School volunteer football coach Nate Hubbard suggested the victim was making the whole story up to avoid punishment for getting drunk and missing curfew. On the eve of the trial of two of the football players charged in the attack, that’s essentially the same argument the lawyer for one of the young men is making.
In some ways, arguing the victim consented is the only defense available. Attorney Walter Madison, who represents one of the young men charged in the rape, laid out his defense strategy to the Cleveland Plain Dealer. Madison argued that there is an “abundance” of evidence showing the victim voluntarily drank a lot of alcohol and willingly drove off in a car with a group of boys, including the two football players charged. That evidence, Madison claims, points to consent to whatever happened next. “There’s an abundance of evidence here that she was making decisions, cognitive choices,” Madison told the Plain Dealer. “She didn’t affirmatively say no,” Madison continued, taking a swipe at the victim, who is reportedly not testifying at the trial. “The person who is the accuser here is silent just as she was that night, and that’s because there was consent.”
She didn’t affirmatively say no, therefore, the defense implies, she must have said yes. And if she didn’t consent, they suggest, then why isn’t she testifying?
It’s a routine strategy employed by criminal defense attorneys in defending clients against rape charges: undermine the prosecution’s case by discrediting the accuser. Cast enough doubt on the accuser, shame her sufficiently for engaging in the sex act to begin with, and the issue of consent becomes muddied, even if the case involves a girl being carried around by her wrists and ankles by a self-proclaimed “rape crew.”
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Had Madison’s statements been made in the courtroom, at some point prosecutors or the judge would presumably remind Madison of the obvious, legal truth: Under the law, a victim doesn’t have to resist or say the word “no” for a rape to occur. And presumably prosecutors or the judge would also remind Madison that, under the law, a person under the influence of drugs or alcohol, voluntarily or involuntarily, is not at fault for being sexually assaulted. What does matter, as far as the law is concerned, is whether her ability to consent was “substantially impaired” and whether the young men knew it.
This issue of “substantial impairment” is what Madison was arguing before the press, and what he will be arguing in trial. Normally attorneys preview arguments to the press to help sway public opinion and press their opposition toward resolution. But here? The two young men charged are being tried in juvenile court, which means no jurors to educate or sway. Instead, attorneys will make their case to Judge Tom Lipps, a juvenile court veteran with decades of experience dealing with teenagers and who took the case over after a prior judge with ties to the community and the football program was recused.
Madison will make that argument in the face of a mountain of evidence, taken mostly from social media from the time of the attack, that shows the victim passed out and at times in various stages of undress. Madison will make that argument, despite the fact that witnesses to the crime, who have not yet been charged, told police that while the victim wasn’t “passed out,” she also “wasn’t there to say yes or no,” slipping in and out of consciousness, at times completely unresponsive when the boys touched and probed her. And Madison will make this argument in the face of a now-infamous 12-minute window, which several other teenage boys talk about her being raped.
Which brings us back to the question: Why preview the defense arguments to the press? Blatant victim-blaming is a risky strategy in any rape case, let alone one that has drawn national attention and protests in support of the victim. Here, it looks to be the only defense Madison has got.
And that, right there, is the problem. Victim-blaming and shaming remain the principal defense against a rape claim in both a court of law and the court of public opinion. Madison’s arguments to the press may do little to change the outcome of the legal case pending before his clients, but they went a long way toward guaranteeing that another tragic crime like the one in Steubenville will happen again.
A return to data should aid in dismantling other laws ungrounded in any real facts, such as Texas’s onerous "informed consent” law—HB 15—which forces women to get an ultrasound that they may neither need nor afford, and which imposes a 24-hour waiting period.
Whole Woman’s Health v. Hellerstedt, the landmark U.S. Supreme Court ruling striking down two provisions of Texas’ omnibus anti-abortion law, has changed the reproductive rights landscape in ways that will reverberate in courts around the country for years to come. It is no longer acceptable—at least in theory—for a state to announce that a particular restriction advances an interest in women’s health and to expect courts and the public to take them at their word.
In an opinion driven by science and data, Justice Stephen Breyer, writing for the majority in Whole Woman’sHealth, weighed the costs and benefits of the two provisions of HB 2 at issue—the admitting privileges and ambulatory surgical center (ASC) requirements—and found them wanting. Texas had breezed through the Fifth Circuit without facing any real pushback on its manufactured claims that the two provisions advanced women’s health. Finally, Justice Breyer whipped out his figurative calculator and determined that those claims didn’t add up. For starters, Texas admitted that it didn’t know of a single instance where the admitting privileges requirement would have helped a woman get better treatment. And as for Texas’ claim that abortion should be performed in an ASC, Breyer pointed out that the state did not require the same of its midwifery clinics, and that childbirth is 14 times more likely to result in death.
So now, as Justice Ruth Bader Ginsburg pointed out in the case’s concurring opinion, laws that “‘do little or nothing for health, but rather strew impediments to abortion’ cannot survive judicial inspection.” In other words, if a state says a restriction promotes women’s health and safety, that state will now have to prove it to the courts.
With this success under our belts, a similar return to science and data should aid in dismantling other laws ungrounded in any real facts, such as Texas’s onerous “informed consent” law—HB 15—which forces women to get an ultrasound that they may neither need nor afford, and which imposes a 24-hour waiting period.
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In Planned Parenthood v. Casey, the U.S. Supreme Court upheld parts of Pennsylvania’s “informed consent” law requiring abortion patients to receive a pamphlet developed by the state department of health, finding that it did not constitute an “undue burden” on the constitutional right to abortion. The basis? Protecting women’s mental health: “[I]n an attempt to ensure that a woman apprehends the full consequences of her decision, the State furthers the legitimate purpose of reducing the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed.”
Texas took up Casey’s informed consent mantle and ran with it. In 2011, the legislature passed a law that forces patients to undergo a medical exam, whether or not their doctor thinks they need it, and that forces them to listen to information that the state wants them to hear, whether or not their doctor thinks that they need to hear it. The purpose of this law—at least in theory—is, again, to protect patients’ “mental health” by dissuading those who may be unsure about procedure.
And make no mistake: The exam the law requires is invasive, and in some cases, cruelly so. As Beverly McPhail pointed out in the Houston Chronicle in 2011, transvaginal probes will often be necessary to comply with the law up to 10 to 12 weeks of pregnancy—which is when, according to the Guttmacher Institute, 91 percent of abortions take place. “Because the fetus is so small at this stage, traditional ultrasounds performed through the abdominal wall, ‘jelly on the belly,’ often cannot produce a clear image,” McPhail noted.
Instead, a “probe is inserted into the vagina, sending sound waves to reflect off body structures to produce an image of the fetus. Under this new law, a woman’s vagina will be penetrated without an opportunity for her to refuse due to coercion from the so-called ‘public servants’ who passed and signed this bill into law,” McPhail concluded.
There’s a reason why abortion advocates began decrying these laws as “rape by the state.”
If Texas legislators are concerned about the mental health of their citizens, particularly those who may have been the victims of sexual assault—or any woman who does not want a wand forcibly shoved into her body for no medical reason—they have a funny way of showing it.
They don’t seem terribly concerned about the well-being of the woman who wants desperately to be a mother but who decides to terminate a pregnancy that doctors tell her is not viable. Certainly, forcing that woman to undergo the painful experience of having an ultrasound image described to her—which the law mandates for the vast majority of patients—could be psychologically devastating.
But maybe Texas legislators don’t care that forcing a foreign object into a person’s body is the ultimate undue burden.
After all, if foisting ultrasounds onto women who have decided to terminate a pregnancy saves even one woman from a lifetime of “devastating psychologically damaging consequences,” then it will all have been worth it, right? Liberty and bodily autonomy be damned.
But what if there’s very little risk that a woman who gets an abortion experiences those “devastating psychological consequences”?
If the purpose of informed consent laws is to weed out women who have been coerced or who haven’t thought it through, then that purpose collapses if women who get abortions are, by and large, perfectly happy with their decision.
Scientific studies indicate that the vast majority of women don’t regret their abortions, and therefore are not devastated psychologically. They don’t fall into drug and alcohol addiction or attempt to kill themselves. But that hasn’t kept anti-choice activists from claiming otherwise.
It’s simply not true that abortion sends mentally healthy patients over the edge. In a study report released in 2008, the APA found that the strongest predictor of post-abortion mental health was prior mental health. In other words, if you’re already suffering from mental health issues before getting an abortion, you’re likely to suffer mental health issues afterward. But the studies most frequently cited in courts around the country prove, at best, an association between mental illness and abortion. When the studies controlled for “prior mental health and violence experience,” “no significant relation was found between abortion history and anxiety disorders.”
But what about forced ultrasound laws, specifically?
Science has its part to play in dismantling those, too.
If Whole Woman’s Health requires the weighing of costs and benefits to ensure that there’s a connection between the claimed purpose of an abortion restriction and the law’s effect, then laws that require a woman to get an ultrasound and to hear a description of it certainly fail that cost-benefit analysis. Science tells us forcing patients to view ultrasound images (as opposed to simply offering the opportunity for a woman to view ultrasound images) in order to give them “information” doesn’t dissuade them from having abortions.
Dr. Jen Gunter made this point in a blog post years ago: One 2009 study found that when given the option to view an ultrasound, nearly 73 percent of women chose to view the ultrasound image, and of those who chose to view it, 85 percent of women felt that it was a positive experience. And here’s the kicker: Not a single woman changed her mind about having an abortion.
Again, if women who choose to see ultrasounds don’t change their minds about getting an abortion, a law mandating that ultrasound in order to dissuade at least some women is, at best, useless. At worst, it’s yet another hurdle patients must leap to get care.
And what of the mandatory waiting period? Texas law requires a 24-hour waiting period—and the Court in Casey upheld a 24-hour waiting period—but states like Louisiana and Florida are increasing the waiting period to 72 hours.
There’s no evidence that forcing women into longer waiting periods has a measurable effect on a woman’s decision to get an abortion. One study conducted in Utah found that 86 percent of women had chosen to get the abortion after the waiting period was over. Eight percent of women chose not to get the abortion, but the most common reason given was that they were already conflicted about abortion in the first place. The author of that study recommended that clinics explore options with women seeking abortion and offer additional counseling to the small percentage of women who are conflicted about it, rather than states imposing a burdensome waiting period.
The bottom line is that the majority of women who choose abortion make up their minds and go through with it, irrespective of the many roadblocks placed in their way by overzealous state governments. And we know that those who cannot overcome those roadblocks—for financial or other reasons—are the ones who experience actual negative effects. As we saw in Whole Woman’s Health, those kinds of studies, when admitted as evidence in the court record, can be critical in striking restrictions down.
Of course, the Supreme Court has not always expressed an affinity for scientific data, as Justice Anthony Kennedy demonstrated in Gonzales v.Carhart,when he announced that “some women come to regret their choice to abort the infant life they once created and sustained,” even though he admitted there was “no reliable data to measure the phenomenon.” It was under Gonzales that so many legislators felt equipped to pass laws backed up by no legitimate scientific evidence in the first place.
Whole Woman’s Health offers reproductive rights advocates an opportunity to revisit a host of anti-choice restrictions that states claim are intended to advance one interest or another—whether it’s the state’s interest in fetal life or the state’s purported interest in the psychological well-being of its citizens. But if the laws don’t have their intended effects, and if they simply throw up obstacles in front of people seeking abortion, then perhaps, Whole Woman’s Health and its focus on scientific data will be the death knell of these laws too.
This piece is published in collaboration with Echoing Ida, a Forward Together project.
Dear Non-Black People:
If you hear about a healing space being organized for Black folks only, don’t question or try to be part of that space.
After again witnessing the recorded killings of Black people by police, I am trying to show up for my family, my community, and victims such as Alton Sterling and Philando Castile. I am tired of injustice and ready for action.
But as a Black trans youth from the Miami, Florida-based S.O.U.L. Sisters Leadership Collective told me, “Before taking action, we must create space for healing.” With this comment, they led us in the right direction.
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Together, this trans young person, my fellow organizers, and I planned a Black-only community healing circle in Miami. We recognized a need for Black people to come together and care for each other. A collective space to heal is better than suffering and grieving alone.
As we began mobilizing people to attend the community circle, our efforts were met with confusion and resistance by white and Latinx people alike. Social media comments questioned why there needed to be a Black-only space and alleged that such an event was “not fair” and exclusionary.
We know the struggle against white supremacy is a multiracial movement and needs all people. So we planned and shared that there would be spaces for non-Black people of color and white people at the same time. We explained that this particular healing circle—and the fight against police violence—must be centered around Blackness.
But there was still blowback. One Facebook commenter wrote,
Segregation and racial separation is not acceptable. Disappointing.
That is straight bullshit.
To be clear, Black-only space is itself acceptable, and there’s a difference between Black people choosing to come together and white people systematically excluding others from their institutions and definitions of humanity.
But as I recognize that Black people can’t have room to mourn by ourselves without white tears, white shame, white guilt—and, yes, white supremacy—I am angry.
That is what racist laws have often tried to do: Control how Black people assemble. Enslaved people were often barred from gathering, unless it was with white consent or for church.
Even today, we see resistance when Black folks come together, for a variety of reasons. Earlier this year, in Nashville, Tennessee, Black Lives Matter activists were forced to move their meeting out of a library because it was a Black-only meeting. Last year, students at University of Missouri held a series of protests to demand an end to systemic racism and structural racism on their campus. The student group, Concerned Students 1950, called for their own Black-only-healing space, and they too received backlash from their white counterparts and the media.
At our healing circle in Miami, a couple of white people tried to be part of the Black-only space, which was held in another room. One of the white youths came late and asked why she had to be in a different room from Black attendees. I asked her this question: Do you feel like you are treated the same as your Black peers when they walk down the street?
When she answered no, I told her that difference made it important for Black people to connect without white people in the room. We talked about how to engage in political study that can shape how we view—and change—this world.
She understood. It was simple.
I have less compassion for adults who are doing social justice work and who do not understand. If you do not recognize your privilege as a non-Black person, then you need to reassess why you are in this movement.
Are you here to save the world? Do you feel guilty because of what your family may have done in the past or present? Are you marching to show that you are a “good” person?
If you are organizing to shift and shake up white supremacy but can’t understand your privilege under this construct, then this movement is not for you.
For the white folk and non-Black people of color who are sincerely fighting the anti-Blackness at the root of most police killings, get your people. Many of them are “progressive” allies with whom I’ve been in meetings, rallies, or protests. It is time for you to organize actions and events for yourselves to challenge each other on anti-Blackness and identify ways to fight against racial oppression, instead of asking to be in Black-only spaces.
Objecting to a Black-only space is about self-interest and determining who gets to participate. And it shows how little our allies understand that white supremacy gives European-descended people power, privilege, and profit—or that non-Black people of color often also benefit from white supremacy just because they aren’t Black in this anti-Black world.
Our critics were using racial privilege to access a space that was not for them or by them. In the way that white supremacy and capitalism are about individualism and racing to the top, they were putting their individual feelings, rights, and power above Black people’s rights to fellowship and talk about how racism has affected them.
We deserve Black-only community healing because this is our pain. We are the ones who are most frequently affected by police violence and killings. And we know there is a racial empathy gap, which means that white Americans, in particular, are less likely to feel our pain. And the last thing Black people need right now is to be in a room with people who can’t or won’t try to comprehend, who make our hurt into a spectacle, or who deny it with their defensiveness.
Our communal responses to that pain and healing are not about you. And non-Black people can’t determine the agenda for Black action—or who gets a seat at our table.
To Black folks reading this article, just know that we deserve to come together to cry, be angry, be confused, and be ready to fight without shame, pain, or apologies.
And, actually, we don’t need to explain this, any more than we need to explain that Black people are oppressed in this country.