Commentary Violence

Louis C.K. Jokes That Women Are Courageous to Date Men—Sadly, He’s Right

Yasmin Vafa

In his new HBO special, comedian Louis C.K. notes that men are "the worst thing that ever happens to" women. The bit is funny, but it's also tragically on point.

In his new HBO special, comedian Louis C.K. articulates how women have been and continue to be alarmingly at risk of violence from men. “The courage it takes for a woman to say yes [to a date with a man] is beyond anything I can imagine. A woman saying yes to a date with a man is literally insane, and ill-advised,” he says (see video at right). “How do women still go out with guys, when you consider the fact that there is no greater threat to women than men? We’re the number one threat! To women! Globally and historically, we’re the number one cause of injury and mayhem to women. We’re the worst thing that ever happens to them!”

He goes on to make an apt analogy: “If you’re a guy, imagine you could only date a half-bear-half-lion. ‘Oh, I hope this one’s nice! I hope he doesn’t do what he’s going to do.’”

The bit is funny, but it’s also tragically on point. According to the Centers for Disease Control and Prevention, one in five U.S. women experiences rape at some point in her life. More than 42 percent of female rape victims were first raped before age 18, and nearly 30 percent of female rape victims were first raped between the ages of 11 and 17. And yet we continue to treat victims with skepticism, shift blame onto them, and publicly shame them because of their victimization. This holds true for woman who have been sexually violated and young girls who have been sexually victimized.

Take, for instance, the recent string of teen girls who were gang raped by fellow students and then taunted and ridiculed as a result of the attacks.

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Audrie Pott and Rehtaeh Parsons, both 15 years old, were gang raped by young men who proceeded to take photos of the assaults and circulate them widely through the Internet and at the girls’ schools. Unable to escape the digital trail of their rapes and endless ridicule by their peers, both girls ultimately took their own lives. What added to the sense of hopelessness and shame that eventually became too great for these girls to bear was the lack of attention they received from their schools and the criminal justice system—two systems designed and trusted to protect children.

There was also the young girl in the Steubenville case, whose gang rape was photographed and filmed while her friends and classmates posed with her unconscious body and laughed. Unlike the other two cases, the girl from Steubenville survived, but much like the other two young victims, she was also mercilessly shamed and denigrated for what happened to her by her community, her classmates, and even the media.

What’s devastating is that we know girls are particularly vulnerable to this type of violence, but when it happens, we seek to rationalize and downplay the incident. People are quick to point to underage drinking or argue that “boys will be boys” to dismiss such violence. Other times we look to the victims for ways to shift blame or justify how their behavior may have warranted or contributed to such an attack. We try to minimize the events by likening them to that one story someone told us in college about a girl who slept with a guy and later regretted it, crying rape. This ignores study after study showing that less than half of rapes are reported. For those that are reported, law enforcement may not pursue the matter or deem the case worthy of investigation, often further traumatizing victims. These reactions send the overwhelming message to women and girls that we don’t care what’s happening to them, that we don’t value them or their safety.

No wonder most victims choose not to report their rape or sexual assault. Why would they when recent studies show that among adolescent sexual assault victims who took the steps to bring their assailants to justice—meaning they filed a police report, spoke with investigators, underwent medical forensic exams, and the like—60 percent of cases were never prosecuted. (Among adult victims, some 86 percent of sexual assaults reported to police were never referred to prosecutors.) In other words, a majority of reported sexual assault cases go nowhere, despite evidence and cooperation from the victims.

When schools fail to punish assailants because they are star athletes with bright futures, when law enforcement doesn’t deem a case worthy of their time to investigate, despite ample forensic evidence, and when journalists lament the future of a perpetrator more than the future of a victim, we send the resounding message violence against women and girls is acceptable, that it is inevitable. And the message to rapists is that they can continue to rape with impunity.

Whether we admit it or not, this country has a serious problem with sexual violence, with rates rivaling those of countries we condemn for their dismissive and sexist attitudes toward women and girls’ victimization. But the reality is that no matter who you are or where you are, whether in the United States or India, if you are a woman, you face an increased risk of violence because of your gender alone. And, unfortunately, there’s a really good chance nothing will be done about it.

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.

News Law and Policy

Supreme Court Tie in Dollar General Case ‘Clear Victory’ for Tribal Sovereignty

Nicole Knight Shine

The case, Dollar General v. Mississippi Band of Choctaw Indians, hinged on whether the tribe had the authority to resolve civil lawsuits involving non-members—in this case, a $20 billion company—on Native lands.

A U.S. Supreme Court tie on Thursday represented a win for tribal court authority in a case involving a Dollar General employee accused of molesting a 13-year-old more than a decade ago.

The case, Dollar General v. Mississippi Band of Choctaw Indians, hinged on whether the tribe had the authority to resolve civil lawsuits involving non-members—in this case, a $20 billion company—on Native lands.

Justices deadlocked 4 to 4 in their opinion, leaving in place a federal appellate court decision that rejected Dollar General’s challenge to tribal court jurisdiction.

“It’s a clear victory,” said Mary Kathryn Nagle, counsel to the nonprofit National Indigenous Women’s Resource Center (NIWRC), in an interview with Rewire. NIWRC filed an amicus brief in the case in favor of tribal sovereignty, along with 104 other organizations. “Dollar General spent a lot of time, and lot of money, and a lot of resources attempting to completely eliminate tribal jurisdiction.”

In 2003, Dale Townsend, a Dollar General store manager, allegedly engaged in repeated acts of sexual molestation at the store on a then-13-year-old Choctaw boy, who was placed there by a youth job-training program. The Dollar General store sits on tribal trust lands, agreed to Mississippi Choctaw tribal court jurisdiction regarding its store lease, and operates under a business license issued under Choctaw code.

In 1981, the Court ruled in Montana v. United States that tribal authority extends to non-Natives entering into consensual relationships with a tribe “through commercial dealing, contracts, leases, or other arrangements,” as SCOTUSblog wrote in the case preview.

Dollar General, however, argued the tribal court had no authority. In its appeal, the Tennessee-based corporation invoked a 1978 ruling, Oliphant v. Suquamish Indian Tribe, in which the Supreme Court held that tribal courts lacked judicial power over non-members in criminal cases.

The boy’s case, however, was a civil matter. While the tribe’s attorney general took steps to bar the Dollar General manager from the reservation, the U.S. Attorney did not bring criminal charges against Townsend. The boy’s family is suing Dollar General and the store manager for damages in excess of $2.5 million, a case that can now continue in tribal court.

Advocates had called the closely watched case an “attack on tribal sovereignty.”

“Nowadays, it’s a very good thing when tribal rights and powers are freshly affirmed,” Robert Coulter, executive director of the Indian Law Resource Center, told Rewire in a phone interview Thursday. “Had Justice Scalia been sitting on the Court, this case would have depended on Scalia’s vote. That’s why there was a great deal of concern and anxiety about the outcome of the case.”

The death of conservative Justice Scalia, and Republican gridlock, has left the highest court in the land with only eight justices.

“If Dollar General had been successful … tribal governments would have been stripped of their inherent jurisdiction over the majority of individuals attempting to harm their men, women, and children,” Nagle, counsel for NIWRC, told Rewire.

“In Indian country, our men, women, and children face the highest rates of sexual assault, domestic violence, and murder—higher than any other population in the United States,” she noted. “The U.S. Department of Justice has reported that the majority of these assaults are committed by non-Indians.”

When prosecutors decline to pursue these kinds of crimes, survivors have increasingly turned to civil courts for recourse.  

More than four out of five Native women are subjected to some form of violence, and 56 percent have experienced sexual violence, according to a May 2016 National Institute of Justice Research Report.

Mississippi Choctaw Tribal Chief Phyllis Anderson told the Associated Press that the Supreme Court tie was a positive outcome “not only for our tribe, but for all of Indian country.”