Imagine the following rape statute: “If a person over the age of twenty-one years has sexual contact constituting oral-genital or genital-genital contact with a minor under the age or fourteen years, such person shall be guilty of a Class A felony and shall be imprisoned for life without the possibility of parole.”
If the legislature passed it, it still wouldn’t happen. Law does not exist in the abstract. Law is a power structure, something that operates in a culture and operates largely consistent with the society’s values. Lots of people in the process, from parents to school administrators and counselors to cops to prosecutors and judges to juries would collude to make sure that a statute like that would not work the way it is written — it would for some people, who didn’t meet societal approval, but it wouldn’t for others, who do. Just like the “war on drugs”. And the reason is that no matter how much lip service we pay to the notion that statutory rape is wrong, our culture (I’m speaking very broadly here, meaning the entirety of the world that is governed by a criminal justice system in the Anglo-American tradition) doesn’t really think that adults having sex with children are always wrong.
Think this is an isolated event? All these people signed a petition in support of Roman Polaski, maybe the world’s most famous child rapist. And Whoopi Goldberg, defending him, said it wasn’t “rape-rape.” You know where she was going with that? That what he pleaded guilty to was statutory rape, which she thinks isn’t real rape. (And she pointedly ignores that the woman Polanski raped told the Grand Jury and everyone who asked since that she said “no,” that he drugged her, that she still said no, and that he forced her.) Even the term “statutory rape” conveys the impression that it isn’t “real rape” –after all, there’s a statute outlawing the conduct that is forcible rape, whatever it is called in each jurisdiction, so those are just as statutory as laws saying that fucking someone under a certain age is inherently nonconsensual and illegal. We call it by the different term in a tacit acknowledgement that it doesn’t count the same. Why don’t we call it “child rape?”
You know what Polanski (who reportedly has other victims including Charlotte Lewis and Nastassja Kinsky) had to say, to Martin Amis in a 1979 interview that has been quoted more recently by journalists rediscovering just what manner of person he is: “Everyone wants to fuck young girls!”
Or this shit, where Terrebonne Parish’s corrections officer repeatedly raped a fourteen year old inmate and the parish is trying to blame her for contributing to it because, being an inmate and pretty much at the mercy of her jailers, she acquiesced instead of yelling, kicking and probably getting beaten or disciplined by the corrupt guards.
So this guy Niel Wilson in England fucked a thirteen year old, and the system focused on the same old slut-shaming shit. In rape cases with adult victims, there’s at least the figleaf of relevance, the pretension that this is something more than an exercise in attempting to label the victim a “bad girl” undeserving of vindication, because the defense argues that it goes to consent, or failing that, the defendant’s subjective belief in consent. If that were true, then there would be no point in trying the same thing in a statutory rape case, where consent is not a defense. But the same issues come up. A barrister for the Crown Prosecution Service in this latest case said, “The girl is predatory in all her actions and she is sexually experienced,” he reportedly told the court.” Leave aside for a moment that this is a vile thing to say … how is it relevant? It’s not a defense!
Except that law isn’t a set of words, it’s a discourse of power that will tend to bend the way the people in the process see the world. Arguing that this child was somehow a slut undeserving of protection, indeed culpable for seducing this poor defendant (who was also in possession of child porn, by the way) seems relevant to the people in the process because the whole frame of reference in a rape culture is not actually consent, but whether the victim is a good girl deserving of protection. That’s always the real question, the crux of what passes for the moral substrata in matters of rape. It seems relevant to people that this thirteen year old was the alleged pursuer, that Mary Doe in Terrebonne Parish had drug problems and a sexual history … (she’s fourteen, which unless her partners were all similar-age means she has a history not of sex but of being victimized).
I’ve written before about statutory rape and I’ve written that I think there should always be a so-called “Romeo and Juliet” exception for similar-aged partners. And I still think so, though in most places 13 is too young for those provisions to apply, and rightly so. I also think that statutory rape laws ought to be enforced: not just when the parents dislike one of the participants, and not just when the prosecution is homophobic — these laws have a history of much stricter enforcement against same sex couples and anyone else whose conduct violates race, class or other norms.
Of course age is arbitrary, but there is no better option that an arbitrary line based of age. Some sort of sophistication test would inevitably bring us right back to the discourse of “bad victim.” While we might on this blog all agree that actual sophistication would mean the teens with the most ability to make mature decisions and advocate for their needs, the rest of the world out there would decide that it meant that the teens who drank and did drugs and were sexualized earliest — the ones the least able to advocate for themselves, sometimes — would be the ones not entitled to the protection of the law. The same way that the system routinely finds ways to decide that sex workers are not entitled to the protection of the law, even if the law says that they are.
And the conduct of a child victim needs to be utterly irrelevant. The principle is simple: no matter how not-innocent a child is, no matter how much they “invite” sexual conduct, being a grown-up means having the responsibility and obligation to say, “No, that would be wrong.” If a thirteen year old lies down in Times Square naked and shouts, “won’t someone please fuck me?” all the adults have the obligation — the absolute obligation — not to. Right? And if they instead fuck a child, regardless of the invitation or provocation, they belong in prison. Is that really a radical statement?
The cases I discussed above are about girls, but this is not only a girl problem.
Adult men who are not incarcerated are very rarely raped, [Edited: see comments] Rapes of adult men are less talked about, and far less common, than rapes of adult women, but boys are raped with horrifying frequency, and they are raped by grownups. (And, in fact, the lower one goes in age, the more likely that the adult who sexually molests a boy will be a women. People consistently underestimate the prevalence of women as molesters because it doesn’t fit essentialist notions of uncontrollable male sexuality, and instead reminds us that rape and sexual abuse are at least in significant part about power and control, though this dynamic cannot be entirely separated from the eroticization of abuse.) I know a lot of people treat cases like Mary Kay LeTourneau as jokes, but I think this does a tremendous disservice to boys. I think they are presumptively (and I mean a conclusive presumption) not ready for, and shouldn’t be subjected to, adult romantic and sexual relationships with adult partners. Just because the damage to them isn’t as widely acknowledged doesn’t mean it isn’t real.
There is a terrible double-standard for minors. In many places, particularly the US, people get very shouty about not “corrupting” minors by giving them accurate information about sexual health, pleasure and relationships. So much of this smacks of purity obsession. But when people violate minors’ innocence, not by giving out information that can help teens become sexual adults with agency, but by fucking them, there seems to be a lot of willingness to blame the teens for participating, or for not resisting, or for not resisting enough. That’s a lot of shit. If we were serious about protecting our youth, we would hold adults who molest them 100% responsible and not even raise the issue of the victim’s conduct. That’s what we would do if we were serious.
The way the common political “sex scandal” gets framed is of no use to me. The dominant political discourse reinterprets the facts and people’s reactions to them along the lines of the existing mores, which is exactly what I want to challenge. Insert Foucault analysis here, blah blah. It’s really hard to jump off those rails that track the discussion into familiar narratives. I’m going to try anyway, because I’m stubborn.
I have a problem with what Anthony Weiner did, for a few reasons.
Thing Number One: Nude Photo Sharing Is For Consenting Adults
As Melissa McEwen said, Consent Matters. Weiner didn’t limit himself to trading pictures with consensual partners, which exchanges without more are totally acceptable. He sent explicit photos of himself to at least one woman who didn’t ask for or want them. Sending explicit photos to someone who has not consented to receive them isn’t innocuous. It’s a kind of sexualized bullying. (See also McEwen’s more recent post.)
Thing Number Two: Pressuring Isn’t Consent
If there’s any question that Weiner’s tactics in sending Cordova a photo of his erection were pressure tactics to turn a conversation about policy with a young women who knew him from his legislative career into a sexual exchange for his gratification, we have confirmation from at least one additional source. As reported in the UK paper routinely called the Daily Fail, Lisa Weiss said, “I’d want to talk about politics but he would turn it creepy.” Weiner had a built-in fan club because of his national media presence, but it’s clear that at least some of these women really wanted to engage him in policy discussions. Instead, he pushed them to engage in sexualized exchanges. The additional privilege of being a national political figure isn’t what makes this unacceptable, but it does make it worse. Some of these folks did Democratic Party volunteer work or related stuff that put him in a position to grant or withhold favor.
Thing Number Three: How You Treat The People Closest To You …
With very few exceptions in political sex scandals, the one issue in the background is monogamy; (1) the assumption that all couples are monogamous and that that means the same thing to everyone; (2) the political cost of telling the public otherwise; and (3) the question of whether a failure to keep to a monogamous arrangement matters to one’s public life.
I’ll take the last one first. I don’t think the faithfulness of politicians is entirely a private matter. I don’t need or want my political leaders to be monogamous; I don’t care if they are. But I do want to know if they can be trusted. When they say what they intend to do, we as voters often feel like we’re going to be played for suckers by unscrupulous self-servers who run for office largely for personal self-aggrandizement. Because we usually are. But one really material way to know if that’s what’s going to happen is whether the politician in question remains true to the people who they know best and have the longest, closest relationship with. That’s often their spouses. I don’t care that they promise monogamy, but if they do and ignore that promise, I hold it against them.
The problem is that public profession of monogamy is about as mandatory as public profession of religiosity. Those political couples with more flexible arrangements, and there are surely some, won’t tell us. There would be a serious political cost, because the world doesn’t share my values. Remember 1996? (I’m old, okay?) Roger Stone had a job with the Dole campaign. He and his wife had an add in a swinger magazine. I have no problem with this. They want to have sex with other couples? Go ahead. Have fun, play safe, etc. But the campaign and the voters did, and it cost Stone his job. (Stone is a vile muck-dwelling bottomfeeder for many reasons including his reputed – but unproven – involvement in the “Brooks Brothers Riot” in 2000, but his sex life isn’t something I revile him for.)
So we can’t know for sure that Huma Abedin and Anthony Weiner didn’t have a relationship where trading explicit text and pics, or even meeting up for sex, with other people was permissible. We don’t know for sure, but it seems incredible in the circumstance.
Weiner had a seat in Congress, and he resigned. If he had the “I worked it out with my wife and it was acceptable” card to play, the cost of that couldn’t have been higher than what he lost anyway, which was a seat in a safe district. If he had that card to play, he would have played it.
Further, the surrogates talking to the press after the latest round of revelations say that Huma wasn’t even aware of the exchanges with the most recently disclosed “digimour”, Sydney Leathers, until this Fall, and that she hit the ceiling when she found out. That’s not consistent with the story of a couple who built in some flexibility to accommodate Weiner’s desire for virtual partners.
The picture it paints, rather, is a guy who, after nuking his political career and publicly putting his wife in the middle of a shitstorm, then found a young admirer online and talked about setting her up in a condo as his girlfriend on the side, looking for a better deal in case he decided to bail on the marriage. This, while Huma was participating in his public rehabilitation. If that’s how he treats a person he’s close to, who has been loyal, who he can be expected to feel a sense of duty … then how will he treat the people of the City of New York? It’s outrageously selfish, even by the standards of ego-driven political animals.
The Media Wants To Have The Wrong Conversation
First, the salaciousness sells. Like casual dining chains with faux-leather booths know that fat, salt and sugar keep people coming back, in the news business, the veneer of seriousness is used to dignify appeals to fear and judgment. They want this to be a jaw-dropping peek into someone else’s sex life and marriage, because it draws eyeballs and brings the advertising dollars.
But it’s not just the news. The prejudice of the pundits and the population alike is to reframe a story to answer the same old questions about sex, which are basically, “Normal? Or Not Normal?” They want to discuss it only from the stance of applying unchallenged assumptions about what “Normal” is. It’s very hard to disrupt that dialogue. The only way I know is to keep refocusing on what matters.
And what matters to me is not what he does with his schwanz, but how he treats people. On that score, he fails the moral test.
I’ve argued against this tendency to say that a rape isn’t a rape unless the survivor makes a police report and the rapist is prosecuted and convicted. But I’ll give that process one thing: it at least offers finality. Right? Right?!
When talking about a rapist, in the media and in everyday life, but always in the media, if the word “rape” is used at all, it is so often preceded or followed immediately by “allegedly.” There are reasons for “allegedly.” One is that we don’t want to be wrong. I could examine that in more detail, but I won’t. I’ll just take that as a reasonable goal. The other, especially in media, is the liability concern: that calling someone a rapist, if not true, is defamatory.
And at some point, these concerns go away. At some point, the issue is decisively resolved. Not for most rapes, but for that tiny sliver where there is an arrest, and a prosecution, and a conviction. The jury returns, gives a verdict. The judge reads the word “guilty.” Verdict, sentence, finality. It happened. It is no longer “alleged,” but proved.
Not to Whoopi Goldberg. In this clip from The View, Whoopi says that the Steubenville rapists are “alleged.” There are a lot of problems with this clip, but I am going to focus on just this one. The Steubenville rapes are not “alleged.” The allegation is contained in an indictment or prosecutor’s information. The allegations are tested at trial, where documents and witnesses are admissible evidence. A jury, or in the Steubenville case because the defendants were juveniles, a judge, makes findings of fact. The judge decided. They were convicted. They did it. That’s fact.*
Whoopi said “alleged.” It’s not because she doesn’t understand. It’s because Whoopi is a rape apologist. I was willing to believe, after the Polanski “Rape-rape” debacle, that Whoopi felt the need to defend people with powerful friends in Hollywood, like Polanski. She has, like Jodie Foster and others, also defended Mel Gibson, who is a racist, anti-semite, domestic abuser who threatened to have his ex gang-raped, misogynist beyond all reasonable defense; but this too could be written off as Hollywood insiderism. But here, she’s defending a couple of convicted rapists from the Rust Belt. Her reasons are her own; she owns this defense and it speaks to her moral character.
But this is not just a Whoopi problem. Barbara Walters then talks about Mike Tyson. She doesn’t say “allegedly,” but she dances carefully around what happened. She says “he was accused of raping a young woman named Desiree Washington.” And she says “he went to prison.” And she says “when they were criticizing Desiree because she went up to his room, they said ‘what was she doing in his room’ … she was being villified as a victim. And he did go to prison.” But she never says that he did it, and she never says that a jury decided he did it. She seems to deliberately make room in her comments for the interpretation that she doesn’t think he did it, that the conviction was wrongful. And she says he is now a “wonderful performer.”
He’s a rapist. This is as proven as proven will ever get. Mike Tyson was convicted by a jury. He appealed, and his appeal was denied. He served his term. It is proved beyond a reasonable doubt, all legal challenge to the fairness of the trial has been resolved. That’s it! We’re not waiting for further word! Res, as the lawyers say, Judicata! So when does he become a rapist in the eyes of the public?
Never, of course, because people like him. Polanski makes wonderful movies and the Steubenville boys were star football players, and people fondly remember Iron Mike from his boxing career.**
“Allegedly” isn’t an attempt at fairness, or a defense against defamation. Here, we see that even when all the facts are in and conclusively resolved, “allegedly” never dies.
I conclude from this that what “allegely” really means is “I’ll never believe it.” There are those who will never accept that the person they know or admire is a rapist, simply because they don’t want to. Because they can’t square what they know with what they wish. Because if it’s true they feel tarnished by association, so instead they reject. Because it’s easier to insinuate that some usually nameless, faceless women is a liar or irresponsible than to change their mind about the man.
It’s easy to be against rape in the abstract. Everybody says they’re against rape. It’s hard to be against the rapist when the rapist is your friend. But if we can’t even be against the rapist when the rapist is just some guy on television that we don’t really know, then it’s going to be awfully hard to make any progress.
This isn’t about “allegedly.” This is about accepting that the rapists are not space aliens or zombies or the “other” from somewhere else. This is about accepting that the predators look just like everyone else.
* Of course, it isn’t. What happened and what a jury decides may be two different things. The determination of the all-white jury in the Scottsboro Boys trial doesn’t make it true, and the acquittals in other cases don’t change what the defendants did. But we’re talking about media, liability and external validation. Should the media treat the allegations as unproven until verdict, and then treat the verdict as questionable forever? There’s no risk management reason to do that. The only reason to do that is to take the side of the rapist.
** Folks around the feminist blogosphere a long time may remember my rant about Tyson in comments at Feministe, writing as a boxing fan, and I won’t repeat it, but I stand by it and I probably know more about boxing than anyone who reads this blog.
This is a guest post by my friend Aurora.
[Content Note: describes sexual assault on a sex worker.]
It is late at night, after I’ve taken my medication. The necessary conversations have been had – he knows not to touch me sexually in my sleep, but cuddling is okay. We’ve seen each other for over three years now and slept together before. He knows my history, my struggles, my slow process of returning from the knife’s edge of mental illness. He pays me for my time, and I choose to have sex with him. Earlier in the evening we had played together enthusiastically, me using my erotic experience and skills to keep him melting with pleasure. We both know what the deal is. We both honor it. Except for tonight.
More than half asleep, I feel his tongue lapping at my pussy. I wake and his face looms in the cold light from the bathroom, greenish-gray, monstrous. We are in a tangle of limbs and blankets, but it never included blanket consent. I roll over and pass out, and wake in the morning thinking that it was a nightmare until he makes a casual joke over breakfast.
He is a rich businessman, a world traveler. I am a woman recovering from mental illness who sometimes moonlights as an escort. I tell him that eating my pussy while I was asleep was a violation of boundaries, and he dismisses my concerns about STIs and consent. He stopped, after all, and let me go back to sleep. There is no contest here because I haven’t yet been paid – I fake a smile over scrambled eggs and keep him company during the elegant activity he has planned for the day. As soon as I can, I take my money and move on.
He’d hired me for the night, so perhaps he felt entitled to my body when jetlag left him feeling bored. Maybe he’d hoped to wake me up and turn me on enough to play with him again. Maybe he was getting off on sexually assaulting me, though I don’t think that’s it – if I’d picked up that vibe, I wouldn’t have trusted him enough to share intimacy in the first place. I suspect that like many people grown used to wielding power without consequences, he simply didn’t respect my boundaries and choices as legitimate when they conflicted with his own desires.
I write this so that others who may have had similar experiences will know that they are not alone, and it is not their fault. I write this because like a skilled musician, I played a man a violin concerto, and later at night he put the bow in my hands and tried to make me saw away at it like a puppet. I write this because I am not a musician, but an escort, and that unlike other women we are assumed to be selling our bodies rather than our services when we choose to provide paid companionship. I write this because I was sexually assaulted, and I will not go to the police or prison-industrial complex seeking any type of justice, because like Sun Tzu I will not engage in a battle that is sure to be a loss.
There are some excellent quotes in this three minute speech by Australia’s Lieutenant General David Morrison. The Youtube transcript is almost unrelated to what he said, so I’ve transcribed it at the bottom. It’s not just about the military. It’s about life. It’s about a world that we all live in, and the attempt to reassert supremacy by men who are angry and bewildered at the loss of some of their privilege. This isn’t a “what about your daughter” speech, and I’m glad of that, because that’s patronizing, not including. Gen. Morrison says the Australian Army needs to fully include and encourage its women soldiers and officers to achieve its mission. And that’s not just about the Australian Army. That’s the world. Humanity needs to fully include and encourage women.
A few choice quotes:
[Women] are vital to us maintaining our capability now and into the future. If that does not suit you, then get out. You may find another employer where your attitude and behavior is acceptable, but I doubt it. The same goes for those who think that toughness is built on humiliating others.
Every one of us is responsible for the culture and reputation of our army and the environment in which we work. If you’ve become aware of every individual degrading another then show moral courage and take a stand against it.
No-one has ever explained to me how the exploitation or degradation of others enhances capability or honors the traditions of the Australian Army.
The standard you walk past is the standard you accept.
Some background. The Australian Army is dealing with some of the same issues as the US armed forces. In 2011, a cadet secretly streamed video of himself and a female cadet having sex, in the so-called Skype Scandal, which sounds a lot like the recent story of nonconsensual recording and disseminating at West Point. And a panel review found a pattern of ignoring reports of sexual assault and abuse in the Australian Army, just like the pattern in the US that led to recent Senate hearings. Gen. Morrison’s reaction is a powerful message.
US Army Chief of Staff Gen. Ray Odierno recently acknowledged that the problem in the US Army is much more serious than he appreciated, and I hope he will pay close attention to this as a model for how to position the issue. It is not just an issue of compassion, it is not just an issue of respect. It is an issue of mission readiness, and of leadership. NCOs and officers who cannot keep their own troops from victimizing each other have not achieved the necessary unit cohesion to expect troops to operate effectively in the field. That’s clearly what Gen. Morrison believes. I hope it’s what Gen. Odierno believes. And it is what out officers and NCOs need to be told.
Transcript of Gen. Morrison’s full speech below the fold: Read more…
[CONTENT NOTE: I'm talking about a guy in Bexar (pronounced Be-har) County, Texas, who shot and killed a sex worker. The description of the shooting is limited, but I will give a graphic description of manifest injustice arising from mysogyny and whorephobia, and that's triggering for a lot of folks. ]
What I’ll start with is what didn’t happen, understanding that what did happen isn’t my story to tell. The person whose story it is, though, is dead. Here’s what didn’t happen.
A man in Bexar County, Texas walked into a bar. His name was Ezekiel Gilbert. He’s thickly built. He’s white. Zeke ordered a beer and a shot and put money on the bar. I’ll call the bartender Lenny. Lenny picked up the money, poured the beer and the shot, and went to the register. While at the register, Zeke and another person in the bar began arguing. Lenny called over the bouncer, who ejected Zeke, who was shouting that Lenny owed him a refund. He then walked back into the bar, shot Lenny in the neck and retrieved money from the cash register.
That’s not what happened. What did happen is that Ezekiel Gilbert shot Lenora. He shot Lenora Ivie Frago in the neck, several times as he sprayed the car she was in with an AK-47. She lingered for months in the hospital before dying of her wounds. There are not a lot of pictures of her on the web, but the Dallas Observer ran one, here. The story says she was 23. These are statistics: name, age.
I’m sure there was a lot more to Lenora Frago as a person: a favorite color and a favorite food and a favorite song, people she loved and who loved her. I know very little about her, and maybe that’s what she’d prefer. Maybe she would want everyone to tell her stories, or maybe she was a very private person. But she can’t tell us. That was taken from her. Anyway, talking about who she was as a person is not something I can do better than other people. Sex work is an area where the problem of people talking-for and talking-about without hearing from the people they are talking about is pretty rampant, and so my real contribution here is very limited, and dry, and theoretical. I’ll recommend a different and more complete post for the reading that isn’t primarily theoretical, Charlotte Shane’s at Tits and Sass, which contextualizes the murder of Frago with the reign of terror by the founder of The Erotic Review, who ultimately tried to arrange the murder of a sex worker that he perceived to have slighted him.
Law, In Theory And Practice
I didn’t know Lenora Frago and I can’t tell you anything about her that other people have not or will not say better. What I can say that, if I don’t, others might not, is something about law and why Zeke Gilbert is a free man though he fired an assault rifle into a car and killed a woman.
I want to add here that there is another, non-theoretical, accessible and well-written legal analysis just published at Tits & Sass by attorney Bella Mansfield. I basically agree with what she says, and what I wrote is more an effort to connect the strains of theory with the tragedy and travesty that is Frago’s death and Gilbert’s acquittal. Readers who don’t care about theory may find Mansfield’s a more satisfying read.
Most law students get some sort of speech from a professor ealy on about how some non-lawyers think that law is like a bunch of speed limits, and you just have to know which one to look up and where to find it. And that that way of looking at it is wrong. Integrating that knowledge is critical to dealing with social justice. It’s impossible to understand the real world — justice, and injustice — by viewing law as some apolitical, objective thing: words in a book executed by robots.
I sometimes dip a toe into theory though I admit I’m not a real theory maven. The area where I’m best read on theory isn’t gender theory, it’s legal theory — though even there, my familiarity is between “passing” and “working” and in no way deep. But much of the development of critical legal studies has applied certain Continental thinking, post-structuralist thinking like Foucault and Derrida, to law. That thinking tells us that law isn’t a bunch of rules applied by robots, but a living, protean system of power. What it means is contested: it is contested using the power to define things, by people with interests in how they are defined. What the words say and what they mean don’t have a concrete relationship to each other. The relationship between words and meaning is, itself, the battleground.
Okay, that’s theory. Now, back to the analogy. If Zeke walked into the bar and shot Lenny the bartender, he would be in prison. In Texas, protecting property from a “nighttime theft” is an acceptable reason to shoot someone. But it’s up to the judge to determine under what factual circumstances that defense applies, and up to the “trier of fact” to determine whether those facts are present. That’s a bunch of legalese. He’re what happens in practice: the judge spends hours, sometimes more than a day in complex cases, giving the jury instructions. Those instructions are basically definitions. Then the jury is supposed to decide what the facts are and apply the facts to the law as it has been explained to them. (In most criminal cases, the trier of fact is a jury, but in some circumstances, it’s a judge — that’s called a “bench trial” and it’s what happened in the Steubenville rape case because that was a juvenile matter.)
What actually happened in Bexar County was that Zeke Gilbert made arrangements to Frago, who advertised as an escort who advertised on Craigslist. He paid her $150. For some reason, she declined to have sex with him. I’ve read various things about why, and I can’t really form a firm opinion of why. If she were alive, she could tell up. But she isn’t, so she can’t. She also declined to offer a refund. He then shot her.
His defense was that refusing him service and refusing him a refund was a “nighttime theft.” That he raised that defense isn’t surprising, because someone in serious trouble will grasp for any excuse. In Steubenville, the defense was basically that by getting drunk with those guys, the victim was consenting to anything they thought up. Well, that’s the defense, but that was ridiculous, and was resoundingly rejected. I don’t think I need to add any facts for people who read here to understand that this is bullshit and should be rejected out-of-hand. (Mansfield, linked above, explains at greater length how much nonsense this is.) But I’ll add one anyway, because what goes without saying sometimes ought to be said anyway. The defense was bullshit in the “that wasn’t my real reason but I thought of it later to get out of trouble” kind. When interviewed by the police, Gilbert didn’t exercise his right to remain silent. He ran his big mouth. And he did not say that he shot Frago to recover his money. That defense was a later invention. For that reason alone the jury should have rejected it.
They didn’t. The jury bought it. This goes in the annals of terrible, egregious injustices in jury trials. It goes right alongside every “gay panic” and “trans panic” defense, and alongside the long history in the US of convicting black men of sexual assault on basically no or transparently fabricated evidence. Juries are a part of the criminal justice system in the US and some other countries, for both better and worse, and they bring to the table the prejudices of the people that serve on them. One thing juries bring with them is a terrible bias against sex workers. I also can’t ignore that Gilbert is a white gun-owning man in Texas, and Frago appears to have been a woman of color. These things are not separable from each other; juries mush it all together and consider it all at once. The the intersection of “sex worker” and “woman of color” are not just something that happens on a chalk board in women’s studies class. They intersect at the point where twelve people decide whether she gets vindicated for the taking of her life or not.
I want to say that there are a lot of things I don’t know. I have not read the trial transcript and I don’t know why the victim refused service. Every business has the right to refuse service to patrons for a variety of reasons. Bars 86 people, restaurants ask people to leave, masseurs and lawyers stop working for clients. The thing is, when that happens, the matter of how they settle up the remaining financial affairs is not a matter of violence. It’s a matter, usually, of contract law. It’s just a dispute over money, and it really, really isn’t an issue of theft. If I tell a client, “I’m not doing any more work for you, and I’m not giving the rest of the retainer back,” if he thinks I’m wrong, his options are fee arbitration or civil suit. Not shooting me.
Sex workers need to be able to refuse to perform services, too — bodily autonomy and the Thirteenth Amendment forbid requiring service; the very idea of what lawyers call “specific performance” is, applied to sex work, an abomination. When they do, the question is simply one of refund. Did Frago take his money intending to provide sexual services, and then leave because he was an egregious asshole or made her unsafe? I don’t know. More than one friend who does sex work has told me that in such an instance, no refund is owed. But there are no fee arbitrations for sex workers, which puts them at risk, and I’ll return to that below.
(I’m talking theory here. The real reason Gilbert shot Frago, when corporate America rips consumers off all the time and consumers rarely kill retail clerks and customer service people, is a toxic sludge of thwarted entitlement, misogyny, classism and racism, sometimes transphobia, etc. that adds up to the perception, in the minds of some violent men, that the object of their anger isn’t human. See, generally, Shane’s post linked above.)
There’s another thing I don’t know. I don’t know how much of this is the judge’s fault. The judge has an enormous amount of influence on a jury, and the way the instructions read are critical. When the judge says how the law applies to the facts, that doesn’t force the jury to see it that way or ignore their life experiences, but it is the most important thing they hear about what the rules are. If the judge’s charge left the jury feeling like they didn’t have a lot of options, then it’s partly the judge’s fault. (Some folks will say that judges are very hemmed in on charging language, especially on criminal case defenses, and I’m just going to say that that debate is too fine-grained and inside-baseball to have here. That’s an argument for a pure crim law blog, which this isn’t.)
To zoom back out: what the law says is a matter of words. What the law means is a matter of power, or as one old radical friend puts it, “exercises of power and excuses therefor.” The system isn’t a computer. The system is people, making decisions that express their (and more broadly their culture’s) values. If a guy shot a bartender to get a refund on a drink after getting tossed from the bar, the “nighttime theft” defense would seem ludicrous. It didn’t seem ludicrous to make exactly the same argument in defense of shooting an escort, and the reason is because in practice, the machinery of law will be used to protect bartenders and will not be used to protect sex workers.
A System Of Dispute Resolution
To the extent that law is something other than a system for the raw exercise of power, it is a system for resolving diputes. I’ll end by circling back to fee arbitrations for sex workers. It sounds kind of amusing, right, at least to folks who don’t regularly engage on sex work issues? Go ahead, snicker. Okay? Got it out of your system?
Okay. The thing about full decriminalization is that every other answer doesn’t work. Here’s one reason why. When we criminalize a transaction, we force all disputes around that transaction, and other things like money used in the transaction, into the shadows. When we decide that sex work is illegal, we don’t stop it, we just put it in the underground economy, where if the deal goes bad, if someone cheats someone, there is no recourse to the established system of dispute resolution.
That’s not to say that legal processes of dispute resolution are great for consumers in the formal economy; in many instances they are incomplete and leave customers at the mercy of big business. But there’s a lot of safety valve in having legal recourse. If we declare that problems between sex workers and clients can’t be resolved by civilized means, we’re telling the clients (who I’m not inclined to think highly of) that their options are the nasty ones: threats, force, blackmail, fraud and the like. Some folks keep looking for some sort of half-measure short of decriminalization, but such measures don’t solve this problem. Anyone who wants to keep sex work in the underground economy needs to solve the problem of how disputes are resolved. They are better solved by cops than by private violence, better by civil suits than by cops, and perhaps better by an arbitrator than a civil suit. I don’t see a policy other than decriminalization that does this.
Thanks to Lori Adorable for excellent feedback, and remarkable patience with my crappy draft.
I told my niece one time, and I stole it from I don’t remember where, “if a guy offers to buy you a drink and you say no, and he pesters you until you say okay, what he wants for his money is to find out if you can be talked out of no.”
I don’t get pictures of strangers’ genitals in my inbox, but lots of women I know do. It’s common in some dating sites and apps, and the ubiquity of the cockshot on Fetlife spawns its own breeds and strains of jokes. And the joke is that they are famously NOT HOT. I’m not talking about people trading pictures when they know each other, or are in the process of getting to know each other. I’m talking about the unsolicited stranger cockshot. If it is so famously not going to arouse the recipient (I know zero women who have ever said they were aroused by an unsolicited stranger’s cock pic), then how in the world would it be a good strategy? Why do it?
Here’s my hypothesis: What this guy [Edited: versions of this keep popping up and then going 404. Try this.] was trying to do was not to arouse the recipient or get her to react to his attractiveness. It was to see how she would react to a boundary violation.
Suppose he was just trying to show her how hot he was. Well, then, he could have asked. If he really wanted to know if she wanted to see a picture of him full-frontal nude, he could have just said, “Hi, I like your profile and you’re really hot. I have nude pics available. Not to brag, but I’m a pretty athletic guy and I think I have a nice cock. Want to see?” And if she said yes, it’s pretty likely that it’s because she actually wanted to see him naked. In addition, this approach would have the salutary effects of showing an awareness of boundaries and allowing her some say in the way the interaction unfolded. If he starts with the idea that she might be taken with his physical offering and want to have sex with him, that’s sort of an obviously superior strategy.
So why didn’t he do that? Possibly because it would not have answered the question he wanted the answer to. I think the question he wanted an answer to was “if I’m wildly inappropriate, how will you respond?”
The unsolicited cockshot is coercive from the start. By the time she thinks, “I really didn’t want to see that,” she’s already seen it. She can then:
(1) just ignore him;
(2) call him on his inappropriateness;
(3) play along and humor him.
This woman went with #2, in spectacular fashion, which didn’t go well for him. But there’s social pressure, basically from birth, to caretake men’s feelings and not make a fuss or be aggressive. I think overtly assertive responses are rare and some sort of noncommittal response to these pics are pretty common.
Note what he does after she tells him it’s unwanted. If the purpose were to show off his physical assets in the hope that she’d be interested, one would expect his reply to her reaction to be some sort of apology. But that’s not how he reacts. Instead, he tries four times to talk her out of her stated boundaries. He asks if it’s too big. He tells her to “relax.” Then he calls her “prude.” These are sort of the classic tropes used to attack women for expressing boundaries or calling out sexism: Frigid, uptight, humorless, prudish.
Now, at this point, he can’t possibly believe she’s typing one-handed. He is conscious of the rejection. Instead of going away, he tried to bully her out of it, and see if he could still pressure her into playing along. In fact, that’s what he kept trying to do, until she followed his profile to his Facebook profile, then to his mother’s profile, and threatened to expose his conduct to his mother. She was being very clear that she wanted him to go away and have no further contact with her, and he kept messenging her until she had an effective threat in hand.
(There’s an aside here about his mother and how he treats women. I tend to think there’s a difference between shame and embarrassment; I can understand being embarrassed about your mother finding out details about your sex life. But it’s clear to me that this guy would be ashamed. In other words, he knows it’s wrong, but he does it because he’s okay with doing things that are wrong and invasive and abusive to women, as long as they’re not his mom or his sister.)
What’s the purpose of this kind of deliberate boundary-testing? To find out if she can be talked out of no. That’s how the Creepy Dom picks targets. That’s how many predators pick targets. In matters of sexual assault, and also intimate partner violence (which overlap a great deal), the boundary violations start relatively small — the inappropriate picture, the “courtesy” expressed as mandate.
They don’t stay small. They escalate, slowly but surely.