Explainers everywhere are working overtime to preserve patriarchal values. One popular strategy that continues to crop up states that, “rape is different from other crimes because it’s a ‘he said/she said’ situation.” This faulty line of reasoning reveals three things: an assumption that in disputes between men and women, men must be given the benefit of the doubt; an assumption that all rapists are men and all victims women; and glaring ignorance about how the U.S. justice system actually operates.

The justice system runs on testimonial evidence, which is exactly what “he said/she said” is. What makes a “he said/she said situation” different from any other dispute between witnesses? In a word: Nothing.

Whether it’s a small claims case between neighbors over dog poop, or a death penalty case of murder in the first degree, witnesses will give testimony, and each side’s testimony will usually oppose the other side’s testimony. If everyone agreed, there would be no reason to be in court to begin with.

Inevitably, some of these disputed cases will pit “he said” testimony against “she said” testimony. We hear the “he said/she said situation” line exclusively in sexual assault cases because men have been accustomed through history to the benefit of the doubt (if not outright commendation) in heterosexual rape cases.

Cases are decided every day based solely on witness testimony. The “lack of corroborating evidence” for testimony — cited by Senator Susan Collins and others during the Brett Kavanaugh hearings as a potential violation of Kavanaugh’s rights — doesn’t mean a denial of due process, the fair procedures that the  all citizens are entitled to, nor does it void a presumption of innocence.

To be clear, testimony by a competent witness is sufficient evidence on its own.

The legal definition of “competent” has evolved over the last one hundred fifty years to mean, simply, being able to perceive and communicate what happened. The “he said/she said” line is likely a holdover from when certain groups of people were classified as incompetent witnesses by virtue of their status. In ancient Athens, for example, women were excluded from courts entirely. And in the 21st century, Jewish law in Orthodox and Conservative communities still holds that women are not competent witnesses in most cases.

To be clear, testimony by a competent witness is sufficient evidence on its own.
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Excluding people of color from testifying was a common practice in the States, and it was legal until passage in 1868 of the 14th Amendment. Why? As one court held, it was because of “their crude and monstrous superstitions, which rendered them incapable of feeling or appreciating the obligation of an oath, as felt and appreciated in a Christian community; and it was not, therefore, deemed safe to receive them as witnesses, even against one another.”

Under similar rationale, atheists of any color were also deemed incompetent to testify, beginning  in the States during colonial times and extending in many jurisdictions through the mid-nineteenth century. Denying people the right to testify, or questioning the credibility of a particular demographic, has always been a way for courts to strengthen social hierarchies like institutional racism and sexism.

The 'he said/she said' line is likely a holdover from when certain groups of people were classified as incompetent witnesses by virtue of their status.
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While women and people of color are now, legally, competent to testify, barriers against them persist. Leigh Gilmore, author of Tainted Witness: Why We Doubt What Women Say About Their Lives and a distinguished visiting professor at Wellesley College, writes that sexual and racial violence are seen by some as “belonging to a separate ordered of judgment.” Moreover, gender and race stereotypes are “sticky judgments,” so ubiquitous that we can’t see them, so prevalent that they seem “neutral.”

When asked to share some thoughts about how doubting women’s testimony creates a benefit for men in the justice system, she says,  

“[G]ender bias makes doubting women feel rational and virtuous rather than unjust. ‘He said’ carries more weight than what ‘she said’ because women’s testimony is demeaned and discredited in ways that men’s testimony isn’t. . . .We have vividly seen with the #MeToo movement the effects of this bias: the lack of transparent and fair processes for women to report sexual violence, the blaming of victims for bringing forward accusations of sexual assault both “too soon” and risking men’s reputations and also “too late,” which disregards all the mechanisms for silencing and shaming victims.”

In this view, witnesses from the dominant group get the benefit of the doubt. Even though it’s a legal truism that “most facts are proved by testimony,” and that even in cases where physical evidence exists, “the human recital — viva voce — is often crucial to the establishment of its authenticity or significance,” testimony from members of marginalized groups in the States and elsewhere has often been cast as unreliable, or simply excluded from consideration.

As a former trial attorney, I’ve seen how the he said/she said dynamic is replicated in cases involving parties from opposite ends of a hierarchy. It could be “white cop says/black kid says,” or “boss says/employee says,” or “priest says/choirboy says,” or “corporate polluter says/environmental group says.” In any case, the member of the dominant class gets the benefit of the doubt. Dr. Gilmore connects this bullshit phenomenon to the “reasonable man” standard in U.S. law:

Take the legal fiction of the ‘reasonable man’ whose motives and actions juries are instructed to consider as the standard for deciding, for example, cases of self-defense. When women claim self-defense in cases where they kill a man, often a violent intimate partner whom they know is intent upon inflicting violence on them — an act that meets the self-defense standard — juries often fail to apply self-defense accurately because they doubt women were justified in using force to defend themselves for two reasons: the assumption that the woman overreacted or that the man’s life, to be blunt, is worth more. We see this in rape cases in lenient sentencing for men like Brock Turner whose father was outraged that his son would be punished for raping an unconscious woman, an act he described as ‘a steep price to pay for twenty minutes of action.’

Just imagine reactions to someone claiming that a prison term was a “steep price to pay” for a woman who took only twenty minutes to torture a man. Flipping the script on cultural assumptions is one way of highlighting their injustice. Dr. Gilmore expects a backlash.

Gender and race stereotypes are 'sticky judgments,' so ubiquitous that we can’t see them, so prevalent that they seem 'neutral.'
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Bias is woven into all the processes for judging what women and people of color say about their lives; so is the unfair privilege that powerful men receive in all aspects of life. In the leveling of this imbalance, men will likely feel aggrieved by the loss of this unearned and undeserved testimonial credit, as will all of those habituated to thinking that male elites deserve this credit.

Victims of racist and sexual assaults will continue to risk further abuse in police stations, courtrooms, congressional hearings, and the media until we explode all versions of “he said/she said” dynamics. And that means a constant, close examination of how media and justice systems treat women and people of color when they come forward to testify.

By Becky Hayes

The most persistent criticism of the #MeToo movement is that advocates have abandoned due process in favor of trial by the faceless internet mob. Critics accuse the women leading the movement of pursuing “vigilante justice” or worse, a witch-hunt.

These critiques have dogged #MeToo from the beginning, and now that the backlash to the movement has reached a crescendo, we’re about to hear a whole lot more.

But don’t listen.

Social media is exactly the right place for #MeToo to play out. In fact, it’s the only place it ever could. The frequent invocation of due process ignores just how inadequate the American legal system is for protecting women against sexual violence and harassment. It is precisely because the courts of law and other traditional avenues of recourse have failed women that they’ve turned to the internet and the court of public opinion.

Due process sounds great in theory. Zephyr Teachout, former Democratic candidate for the U.S. House of Representatives in New York, defined it as “a fair, full investigation, with a chance for the accused to respond” in her recent New York Times op-ed on this topic. It’s hard to argue with that. The concept of due process is a fundamental pillar of the American justice system and one that we pride ourselves on.

The problem with #MeToo—according to its detractors—is that women have bypassed the courts, where due process rights apply, and gone directly to the public to seek out justice. The public, in turn, has rushed to judgment. Critics argue that justice can only be served by submitting these claims through the formal legal systems that guarantee basic fairness to the accused.

Social media is exactly the right place for #MeToo to play out.

We know from experience, however, that the systems currently in place to deal with complaints of sexual harassment and assault have systematically failed victims and have allowed far too many perpetrators to continue their abuse unchecked.

This is true of the nation’s criminal and civil courts, forced private arbitrations, HR department investigations, and campus tribunals. There’s no great mystery as to why. We have shorthand for these kinds of impossible-to-prove claims: “he said-she said.”

The phrase refers to the fact that all too often the only evidence in sexual harassment or assault cases is the victim’s word against the abuser’s denial. The incident of alleged abuse almost always takes place behind closed doors, so there are no other witnesses. With so little to go on these claims almost never result in a successful verdict.

And while no database tracks the outcomes of employment discrimination cases nationwide, a review of a random sampling of cases by Laura Beth Nielsen, a professor at the American Bar Foundation and Northwestern University, revealed that only 2% of plaintiffs win their cases.

Even when there are eyewitnesses, much of the mistreatment women are complaining about falls short of the legal definition of sexual harassment. There is a big gap between what the public believes is appropriate workplace behavior and what is considered egregious enough to warrant discipline, dismissal, or legal sanction under our existing guidelines and laws.

For example, did you know that your supervisor grabbing your butt at work is not enough, on its own, to sustain a claim under Title VII, the federal law that prohibits workplace sexual harassment? The Equal Employment Opportunity Commission (EEOC) defines sexual harassment as “unwelcome sexual advances” that “unreasonably interfere with an individual’s work performance,” or that create a hostile atmosphere at work. Under Meritor Savings Bank v. Vinson the Supreme Court held that such conduct must be “sufficiently severe or pervasive” to “create an abusive working environment.’” As recently as 2014 a federal court dismissed the claim of an employee whose boss grabbed her butt twice in one day in front of co-workers because it was neither severe nor pervasive enough to offend the average woman according to the judge, a woman no less.

Laws protecting women from sexual misconduct are much narrower than the commentators who want to redirect all these claims into the courts seem to realize. Annika Hernroth-Rothstein argues in National Review that “[i]f sexual harassment is a crime, it should be fought not with hashtags but with the full force of the law” in a piece titled, “#Metoo and Trial by Mob.”

Sexual harassment is not, in fact, a crime. Title VII imposes only civil liability — i.e. money damages — on employers in cases of workplace misconduct. Further, only employers with more than 15 employees are covered. Employees of small businesses have no federal protection.

Due Process Is Needed For Sexual Harassment Accusations — But For Whom?

The same goes for freelancers employed as independent contractors and unpaid interns. Some state and local laws are more generous, but these are few and far between. Sexual harassment claims against anyone but employers and, under Title IX, federally funded schools are not covered at all.

Even if your claim is covered and meets the legal definition of harassment, there are still multiple barriers to seeking recourse through the courts. First, going through the formal legal system costs money. There are court fees and lawyers to pay, in addition to the time off work required.

Second, sexual harassment claims are subject to statutes of limitations — meaning that victims cannot bring these claims after a certain amount of time has passed. In many cases, these time limits are very short. The federal statute of limitations under Title VII, for example, is only 180 days, or roughly six months.

The New York State limit is three years.

Many of the claims of sexual harassment—and worse—that are coming out now as part of #Metoo are many years, and in some cases, decades old. Victims of sexual harassment often have more pressing needs in the immediate aftermath of the experience than filing a lawsuit, including dealing with the resultant trauma and, all too frequently, job loss. For these men and women there is nowhere else to go but the internet to air the grievances that have long been buried.

What Happens When Your Rape Expires? – The Establishment

The calls for due process are often tied with calls for reform to the existing laws. Reforms can take years to pass, and even when they do, they almost always apply prospectively to new claims, not retroactively. Thus, for many of the victims who posted their experiences as part of #MeToo, their options were internet justice or no justice at all.

Which would you have had them choose?

Social media has no barriers to entry. It is free and open to all. The only thing women need is an internet connection and the guts to come forward. Unlike the federal courts which are bound by the strictures of a nearly 50-year old law, the public has shown great willingness to consider the whole wide range of women’s stories that run the gamut from rape to a squeeze on the waist during a photo op.

Even better, social media has allowed for a dialogue among diverse voices about what kind of behavior is acceptable and desirable in the society we want to live in, rather than just what is legal or illegal. The recent engagement around Babe’s account of a young woman’s date with Aziz Ansari is the perfect example. That article engendered some of the most thought provoking discussions on today’s sexual politics despite the general consensus that the behavior described didn’t break any laws.

To Raise A Feminist Son, Talk To Him About Aziz Ansari

One of the unique advantages of social media that makes it particularly well suited to this movement is the incredible power of hashtags to connect women with similar stories. The men who have been brought down by the #MeToo movement have not been felled by individual women tweeting out isolated claims. In each case consequences have been visited upon abusers based on the strength of a large number of women coming forward with often nearly identical allegations that show a pattern of misbehavior.

Such is the power of #Metoo that it can aggregate the stories of women who have never met and who are separated by decades. Hashtags allow for the revolutionary possibility that sexual harassment will no longer be characterized by “he said-she said” allegations, but, as illustrated poignantly in a recent New York Times ad, “he said- she said, she said, she said,” cases, ad infinitum. (Though, of course, even one “she said” should not be dismissed.)

For all its utility, the role social media played in the #MeToo movement has also been overstated. The stories that brought down industry giants like Harvey Weinstein, Louis C.K., Mark Halperin, and others did not originate on social media platforms, but rather in the pages of the nation’s finest newspapers. The allegations were thoroughly vetted by investigative journalists bound by a code of ethics that provides its own kind of due process. Journalistic ethics require corroborating sources before going to print with a story with serious allegations such as sexual harassment. Furthermore, journalists always seek comment from the accused, giving them an opportunity to speak out on their own behalf.

Critics’ insistence on due process presupposes an answer to a still open question: What is “the point” of #MeToo? The courts are best at meting out punishment for violations already committed. What if #MeToo isn’t about punishment, or, more to the point, what if it’s about more than punishment?

What if it’s about changing the system prospectively, not seeking redress for the past? What if it’s about prevention? The author of the Shitty Media Men list wrote that her goal was to warn others about men in her industry so they could protect themselves. What if #MeToo is about catharsis and about having a long overdue conversation where we all get to have a say? What if there are a multitude of points, and very few of them are well served by the courts?

The reflexive outcry about the need for due process from #MeToo critics is not well considered. It’s time we stop telling women where, when, and to whom they can tell their own stories. If #MeToo is about anything, it’s about the end of the era of women and other victims suffering in silence.

“I am the law and order candidate,” then presidential candidate Trump noted in 2016. And since then, he has continued acting on this idea. While few of us would oppose “law and order” entirely, the conception of it that’s anchored to this American president, and what he represents, should give pause. By using such broad terms, Trumpians can claim to have the country and the world’s best interests at heart.

The idea of “law and order” has a particular history in America, famously espoused by George Wallace and Richard Nixon in their presidential bids. As FiveThirtyEight notes in its excellent history on the concept:

“The first definition of law and order was closely linked to a broad social context, a reaction to activists who challenged American foreign policy, traditional gender roles, and other aspects of the social order alongside race issues.”

Campus protests, feminists being outspoken, black communities calling out laws and policies that target them specifically — America has been here before and, as before, those in power cite law and order to maintain power structures. In other words, if you oppose the horrific, awful results of their “law and order” policies, you must hate America, the world, law, and, well, order. This was effective for Nixon, Wallace, and others — and now it’s proven effective for President Trump’s administration.

Those in power cite law and order to maintain power structures.
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Trump has shown, especially in these last months, his willingness to not only uphold white supremacy but to encourage policies and strategies that further target minority groups. Law, in his hands, is a way to bring about that supremacy using the powerful machine of government. When those who stand for white supremacy, like President Trump, begin touting law and order, I am reminded of South Africa’s apartheid history.

An often-forgotten aspect of apartheid was that the horrific practices and racist policies were entirely legal.

“The South African administration of justice and the judicature stand out as a symbol of hope and confidence. Even South Africa’s severest critics readily conceded that the standard of the administration of justice in South Africa is of the highest order…[the former US Ambassador to the UN, Andrew Young] spontaneously and readily conceded that the South African administration of justice complied with the highest standards.”

This was stated by a member of the South African National Party in Parliament in 1985. (The future) President Mandela and others were still in prison. As Richard Abel states in Politics by Other Means: Law in the Struggle Against Apartheid, 1980–1994: “the infrastructure of apartheid — an administrative nightmare more complex and bureaucratic than the combined tax code, criminal law, regulatory apparatus, and welfare system of most countries — was constructed out of law…” (If it is constructed out of law it was “thus susceptible to legal challenge,” making it one of the few ways opponents could fight back.)

A Woman’s Right To Choose Under Apartheid And Why It Still Matters

Law is not automatically premised on morality or grander ideas of justice — in a nutshell, law concerns itself with the rules needed to govern, to keep the peace, to maintain order. Whether the law succeeds is a separate question, but that is ultimately its purpose. Thus, at its base, law is not good or bad, but necessary for a society to function. It’s the nuts and bolts to keep the machine of government moving. Asking “What is the law?” is a separate question to “Is the law morally justified?”. Ask those who maintained law during the Nazi regime, for example.

Even the discussion of whether law is effective does not mean it is good — in terms of being effective to maintain white supremacy and colonial rule, apartheid laws were often successful. They maintained separation based on race, providing little or no opportunity for people of color, creating unfathomable and unnecessary limitations on their freedoms.

And all of it was legal.

So what does “law and order” mean for white supremacy? Consider the description above: law as a tool, as a necessary outcome of governance.

The first question is what are you trying to govern? The obvious answer is people, your citizens.

The next question is how. For the apartheid government, they wanted to make sure the machine of separation of the races continued. Thus: laws demanding black people carry passes was implemented to reinforce government surveillance, keeping populations separate and instilling constant fear; the necessity of language restrictions and elimination of subjects in education butchered the future of entire generations of young people of color; before 1985, even romantic and sexual interactions “between the races” was forbidden, thanks to laws like the Prohibition of Mixed Marriages Act and the Immorality Act. Law dominates every facet of life for a citizen — but the laws are created by a government, which decides how it wishes to govern.

Consider President Trump’s America. With unsubstantiated claims of a violent society, the government has decided on a stronger, more strict response to even minor crimes. This has led to Attorney General Jeff Sessions issuing orders to prosecutors to seek the harshest penalties — for example, regarding drugs. Many have noted that this is not only ineffective, but that it is minority communities who would suffer the most.

When I Said All Trump Supporters Are White Supremacists, I Meant It

Even in February, those with decades of experience in law enforcement noted that such hardline stances are shit. Research has shown how ineffective and devastating mass incarceration is, here and abroad, and yet here we are doubling down on stuffing prisons with more people. This is to say nothing about unequal consequences for crimes based on race.

You need not be distrustful of the concepts of law, you need only worry about who is claiming to defend it. A hammer is different in the hands of a woodworker than in the hands of a screaming KKK member. The problem isn’t the hammer, it’s the wielder.

While it’s true that there is a separation of powers between those who make laws — the legislature, Congress — and those who enforce them — the executive branch, the Trump administration — you can’t ignore that the GOP, which controls much of the law-making bodies, has continued to demonstrate the most vile, cynical, and immoral perspectives on the world.

You need not be distrustful of the concepts of law, you need only worry about who is claiming to defend it.
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President Trump and his administration do not — and indeed may not — make the laws. These toxic laws they need to enforce are already shat out with regular abandon by the coagulated, cantankerous rot of hypersensitive white male fragility called the Republican Party. These old white men with spiderwebs for spines cut holes through human decency and slither around ethical deliberation. This is not a place where laws premised on goodness and justice are made, but where power is reinforced and white supremacy nurtured.

Law and order are the tools they use to hollow out what you might laughably call American democracy so they can pour their cynicism in. What’s birthed is a society increasingly witnessing what so many have fought against and thought they’d overcome: public demonstrations of racism, white supremacy, segregation, hostility. In a sense, they want a paranoid world, a violent society, to justify their horrific laws. In responding to a threat that isn’t there, these fragile white men are trying to create it. They are frightened townspeople storming an empty windmill.

The point is, cries of law and order and “hardline” stances do not automatically make for a good society. They often make for a worse society because such hardline stances are, as history shows, often tools for white supremacy. Law is not automatically good. Indeed, the moral thing to do could be to oppose such laws — as so many during the apartheid struggle, including future Presidents and government officials, did.

Law and order are the tools they use to hollow out what you might laughably call American democracy so Republicans can pour their cynicism in.
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Ideally, fighting law with more law can create improvement. This should be distinguished from the chest-beating cries of “law and order” made by those who care not for progress, but for the maintenance of current power structures. Law itself can be good for progress, but assertions of “law and order” only focus on keeping things as they are.

For example, in South Africa, our highest court struck down the death penalty as a legal form of punishment, because it conflicted with our highest law (our Constitution, which established a right to life, human dignity, and so on, which the death penalty violated). In America, the Supreme Court only recently allowed for equal marriage across all states, and the Courts have spent thousands of pages striking down President Trump’s travel ban.

But when “law and order” is used as a slogan, as a basis for hardline responses that have been demonstrated to be ineffective, as tools to cement white supremacy, we see that law is a tool that may not be on your side — in the end, those who care about actual justice must be constantly vigilant when those in power claim to be defending law.

Scratch that. I am so angry and full of despair that sometimes all I can do is cry.

Several Halloweens ago, during my time as a student at Tufts University, I was raped.

When my body isn’t reminding me of the weight of the trauma through panic attacks, depressive episodes, and comfort eating, my environment does the job. When you have around $100,000 in educational debt coupled with the inability to find and keep steady work, the daily panic from unpaid bills and no idea when your next paycheck will come in creates quite the dark cloud.

I’m on food stamps. I’m going to be on Medicaid (which my shrink or gyno don’t take, but I simply cannot pay $400 a month in premiums anymore). Both of my bank accounts are overdrafted. At first glance it might seem to be quite a jump to connect my campus rape and Tufts’ institutional apathy to my poverty, but low grades and poor economic health are documented consequences of sexual violence.

Meanwhile, my rapist graduated on time, went to law school, and likely will never face anything close to the financial devastation I face in my day-to-day life. It’s probably needless to say, but: The most meaningful form of justice after my rape looks like a big fat paycheck.

Yes, I reported the assault to the police. Yes, I reported it to my school. And, no, nothing came of it — except the administration kicking me out when my grades dropped in the wake of the attack due to mental health struggles.

My lack of recourse after reporting the attack is far from uncommon. The legal system’s pitiful record of holding rapists accountable made regular headlines this year — from Brock Turner’s three months served (out of a six-month sentence) to his University of Colorado counterpart serving two years of “work release,” allowing him to go to school during the day and return to the county jail at night. The resounding outrage in response to these articles was largely, “this is not enough; this is not justice.”

But the reality is that these men’s sentences are actually more severe than what an overwhelming number of rapists will ever see — and this fact seems to have been lost in the chatter. Out of the many points of injustice that serve as a target for outrage — including the fact that rape happened in the first place — the one attracting the most energy this year has been the time Turner has spent in jail. And while it’s great that our society is increasingly talking about the legal system’s shortfalls, just looking at individual failures won’t do anything until the energy and outrage spent on these injustices are used to protest rape culture as a whole.

It’s time to ask — and answer — what does justice after rape look like?

Unfortunately, this conversation about what justice would look like after rape has been largely absent in sexual assault coverage this year. This must change: The mainstream idea of “justice” after rape in our society is ridiculously limited. There’s a focus on securing it through the U.S. legal system, but not only does this fail to live up to its name of a so-called criminal justice system — especially when it comes to sexual assault, with 97% of rapists never seeing a day in prison — but it also doesn’t offer the justice that many survivors want, need, and deserve.

It’s Time To Expand Our Idea Of Justice — And Survivors Should Lead The Way

While campus sexual assault is getting more attention than ever, the reality of its continued prevalence is grim. With alarming statistics — including that 1 in 5 college women are survivors of sexual assault, and that over 200 federal investigations into academic institutions for mishandling sexual violence are ongoing — it’s time for us to go beyond the letter of the law and our focus on compliance. At the end of the day, legal recourse is only accessible for a small amount of people; the law was made to protect the interests (read: property) of old white dudes, after all.

That’s why Kamilah Willingham and I launched the #JustSaySorry campaign: As activists who have spoke with numerous other survivors on the ground, we all believe in the transformative power of a (sincere) apology. With new devastating stories like a student dying by suicide after William Paterson University didn’t investigate her rape and a University of Colorado rapist escaping jail time, a campaign like #JustSaySorry might appear to trivialize rape. After all, a demand to school administrators to apologize juxtaposed to even my personal and financial pain probably seems confusing. But our — still unanswered — demands to Tufts University, Harvard Law School, and all academic institutions to directly apologize to survivors and other members of their community for failing to properly address sexual assault does quite the opposite.

Apologies from powerful institutions can be a transformative tool that both helps survivors heal and sets the stage to prevent more sexual violence.

I will never hesitate to say an apology is not enough to undo the damage facilitated by Tufts University. But there’s really nothing else, at this juncture, that the university can do for me. I cannot sue the school in civil court (legal fees were too high for me to pursue it before the statute of limitations were up) and my Title IX complaint ended with a ruling in the school’s favor. On top of that, I already got my bachelor’s degree from another school; apologizing is the only form of justice from my former school that is available for me — and countless other survivors.

Most survivors do not report their assaults to the police, and sadly, the people who are at higher risk of being sexually assaulted — such as queer folk, trans people, and people of color — report at even lower rates. There are many reasons for this, but the limited options for justice is one of them: It’s been well-documented that pursuing justice after a sexual assault through the legal system is tough, often referred to as a “second rape.” If we all acknowledge that rape is a heinous crime, we need to work to create multiple avenues of justice for survivors that can facilitate their healing and promote accountability for assailants and their enablers.

This is where the apology comes in. In spite of increased visibility of the issue, rates of campus sexual victimization have remained largely unchanged over the past 40 years; researchers still have not found programming that shows a significant reduction in campus sexual violence. Compare this with a 74% decrease in national rates of sexual assault and rape, which is in line with a general decline in violence. Clearly the policies we have now for campus sexual violence aren’t enough to reduce rates.

It’s Time To Take The Unjust Burden Off Survivors And Put It Where It Belongs

Colleges could do something simple that could help reduce rates and give most survivors what they seek: publicly denounce rape and apologize for past wrongs committed against survivors and the community. In the 2015 edition of Trauma and Recovery, author and psychiatrist Judith Herman addresses just how powerful this could be (emphasis mine):

Demanding an apology from institutions places the post-rape focus and pressure where it belongs: on the people, procedures, and policies that allow it to happen and let rapists continue with impunity. Instead of shaming survivors to report to the police to end rape, we can demand institutions to apologize for allowing it to happen — and go inadequately punished — under their watch.

My attraction to an apology isn’t just about wanting to feel better about the injustice I endured. After years of research and activism, it’s clear that apologizing can set the stage to help everyone who ever steps on a school campus (the ones who don’t rape, anyway).

If school leaders choose to publicly acknowledge past institutional failures to address sexual violence, survivors will hear that validation and know that the burden of shame isn’t theirs to bear. That sentiment can reverberate and affect future survivors, who will remember the school’s apology, trust the institution more, and be more likely to report and/or seek needed resources for themselves.

Further, apologies can help other campus survivors who haven’t felt able to step forward feel supported and empowered to seek the resources they need. If it’s done properly, an apology can be a part of a trauma-informed approach, which means that the school has intentionally created institutional structures and practices that ensure that their sexual assault prevention and response shows that the school knows what trauma is, how it manifests, and what the best responses to trauma is. The school can educate other students through leading by example to stop victim blaming and promote empathy toward survivors.

The administrators at academic institutions cannot make a meaningful reduction in sexual violence until they proactively work to understand the dynamics of trauma and the reality of rape culture. If they don’t understand why students and advocates are so upset by their institutional failures in regards to sexual violence, they need to do the research into the reality of campus rape culture and the damage they cause when they deny its existence. When 20% of women are raped during their college career, learning the truth about rape culture is part of their job. College administrators need to stop dragging their feet in creating real change and expecting cookies for not-enough gestures like Stanford’s victim-blaming alcohol policy or Harvard’s canceling the men’s soccer season with a whopping two games left (while the team members and coach remain unpunished).

Creating safer campuses immediately is possible. And all it takes to start is an apology.

Rap has a long history of involvement in protest and social commentary.

Lead image: Copyright Legal Means 2015, artist credit Rashad Jamaal

By Lily Hirsch

In late 2012, the lives of three young black men in Pittsburgh were forever altered. On November 11, Leon Ford, Jr., was stopped by police officers who were looking for a different L. Ford. During the stop, an officer shot Ford five times, leaving him paralyzed. He would never walk again. Four days later, on November 15, police found a video posted online of a rap song written by Ford’s best friend, Jamal Knox, along with another friend, Rashee Beasley. That song, “F* the Police,” led to the arrest of Knox and Beasley — both charged with making “terroristic threats.”

Last month, Pittsburgh attorney Patrick Nightingale offered the Pennsylvania Supreme Court a chance to review Knox’s case, filing a petition for redress, undertaken at the discretion of the court. There are many reasons the court should agree to this review. This astounding case channels the incendiary outrage of our times, generated by police shootings — widely covered and all too common — of unarmed black men. The case also points to real concerns about violence against the police, especially after the killing of officers in Dallas earlier this year, and would in fact allow the Court to clarify legal definitions of threat. There is also, of course, the ongoing issue of rap’s abuse at court.

I recently corresponded with Knox, who is still in jail, and he helped me understand how this all happened and what he hopes might come from it in the future.

Knox was born on the North side of Pittsburgh on March 11, 1994. He grew up in Northview Heights, a housing project, and his interactions with the police started early, mostly due to his father’s short fuse and his mother’s proximity to the explosions. One of his father’s stints in prison gave his mother enough time and space to escape. She moved Jamal and his three siblings to the east side of the city, where they could grow up near cousins and away from the regular domestic violence that had marked their earliest years. But she couldn’t take them away from violence completely.

Knox recalls being hit by a stray bullet during an incident in which he was not involved. He says he was “hassled” by officers and learned early to run from the police. It seemed his best recourse. In his letter to me from prison, he wrote: “My resentment became deep because I was hurting and couldn’t understand why.”

Thankfully, Knox found an outlet. In middle school, he discovered poetry — by Maya Angelou, Langston Hughes, and Tupac Shakur. He began to write his own in private. Then a friend helped him see how his hobby might translate into music. “My best friend I met in middle school, he was my first producer,” Knox told the court in 2014. “His name is Leon Ford. He had a studio…he asked me one day, do you want to come record in the studio. I said man, I don’t rap. I don’t rap. I write poetry. He said poetry is rap. I said yeah? He said yeah.”

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Ford helped Knox find his musical voice and the two started a group called the “Goon Squad.” Though the group didn’t last long, Knox and Ford would always have a strong bond. Knox admits that his path, unlike Ford’s, eventually involved drugs, but he continued to turn to music as a means to express his feelings — the only way he could do so without violence. When Ford was shot, music was naturally Knox’s response.

Rap has a long history of involvement in protest and social commentary. During the 1980s, rap increasingly included social messages and addressed political themes, such as gang violence, poverty, racism, and police brutality. Rap’s perceived swagger and braggadocio often plays into that — projecting strength often in a powerless situation, giving voice to some who feel voiceless. Violence in rap can then be both part of this protest, documenting lived circumstances, or more metaphorical, as a symbol of power. The negative is flipped and the thug is celebrated as outlaw. When I asked Knox whether “F* the Police” was intended as a protest, he said yes. “It was a statement.”

The trial would imply a connection between the song and Ford’s shooting. But protest and its relationship to rap never came up as an explicit defense.

In March 2013, during the preliminary hearing, the defense did point out that use of the term “fuck the police” has long-standing precedent in rap dating as far back as NWA’s “Fuck tha Police” (1988) and Ice-T’s “Cop Killer” (1992). The musical refrain “F* the Police” then is hardly unique, hardly deserving of such unusual sanction. Today, the line has taken on meaning far greater than any one artist, any one example of the genre. Isolated from any particular work, the phrase has become a chant at Black Lives Matter rallies and protests against police violence. And the phrase, in chant or song, isn’t going anywhere anytime soon. Ice Cube made that clear this summer, vowing to continue performing his iconic contribution to the genre: “I ain’t gonna change nothing I do,” he said, “because I ain’t do nothing wrong.”

But as the prosecution noted, Knox and Beasley’s song referred to two specific Pittsburgh police officers by name, and also referenced the perpetrator of an infamous 2009 shooting of three Pittsburgh police officers — who has since been sentenced to death. One of the named officers was directly involved in a prior arrest of Knox as well as Ford’s traffic stop. The prosecutor argued, “I mean, there was talk about N.W.A. and other rappers, you know, who have made fuck the police songs, and there’s a whole, you know, fuck the police genre. But it doesn’t appear that any of those songs threatened particular police officers.”

According to Nightingale, who was not then a part of the defense, the prosecution’s argument was founded on “a distinction without a difference in the eyes of the First Amendment. Merely calling out specific officers in a song and making reference to a well-known police shooting only bolsters the hyperbolic nature of the song, and at least in this instance did not create an imminent threat.” But at the time, the prosecution’s strategy worked, stripping the song of its First Amendment protection, and the case was held for trial. The judge seemed to view rap as threatening regardless, mentioning “the culture of violence that is rap music,” with no discussion of the roots of such rhetoric in rap — including commercial demands, boasting, and the symbolic use of violence in rap to project power. While there is truth in rap, the music has never been a literal text.

The non-jury trial took place in November 2013 before the president judge of the Allegheny County Court of Common Pleas. Both Knox and Beasley were officially charged with making “terroristic threats,” specified at court as “communicating a threat, either directly or indirectly, to commit a crime of violence with the intent to terrorize.” The defense largely focused on two points throughout the trial, which lasted several days. First, the defense argued that Knox and Beasley’s alleged conduct simply did not fit the crimes charged. Second, the defense argued that the song was protected by the First Amendment because it did not amount to a “true threat” as defined by the United States Supreme Court. This was not a direct or indirect communication. Not only was the song discovered on Facebook by a Pittsburgh police officer who was monitoring Beasley’s page under an alias, but the police admitted that neither defendant made the song available online. Terrance Hart, a fourteen-year-old boy, had uploaded the song to Youtube, and it was then linked to Beasley’s Facebook page. But the argument was ineffective against the court’s repeated insistence that the intent was not the point. Rather, the case hinged on the police officers’ perception of the song and its supposed threat, a course since rejected by the United States Supreme Court case Elonis v. U.S, which ruled that intent matters, not perception.

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But what about the song itself? Attorneys for the defendants ignored many aspects of “F* the Police” which would have given the lie to the idea that it was a terroristic threat. No one called attention to other voices involved in Beasley and Knox’s rap, including a female one, which would have muddied the issue of ownership and therefore liability. No one described a rather somber motif with a descending pitch in the backing track — one that arguably undercuts the song’s bravado as well as any perceived active message of violence. And no one pointed out a change in timbre and emphasis in the final line of the chorus, which signaled to me, when I first heard the song in 2014 while writing an article on the case, the possibility that the crucial phrase “fuck the police” is actually a sample.

In my letter to Knox, I asked him whether he had sampled “fuck the police” from one of the numerous other songs that contained the phrase. He confirmed that the last line was indeed a sample — from the rapper Soulja Slim, who died in 2003, his shooting death still a mystery. Neither Beasley nor Knox had even voiced the words “fuck the police” on the track.

But, again, the trial had none of this. The only mention of the music came in fact in pre-trial — “The beat had a nice rhyme.” Otherwise, the lawyers ignored the specifics of the music, as well as the history of rap. They treated the lyrics as a literal text, with no expert testimony about the music — the often contested relationship between the lyrics and the backing track, the traditional role of humor and boasting, the connection between violence and commerce in rap, or the ways in which music conditions the meaning of text generally. The song, in short, was not treated as art. And this mistreatment made greater the potential for prejudice.

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This is typical of the way rap is treated in a courtroom scenario. As Erik Nielson and Michael Render (aka Killer Mike) wrote in USA Today, “No other fictional form — musical, literary or cinematic — is used this way in the courts, a concerning double standard that research suggests is rooted, at least in part, in stereotypes about the people of color primarily associated with rap music, as well as the misconception that hip-hop and the artists behind it are dangerous.” Indeed, according to a recent study, “the mere label of rap is sufficient to induce negative evaluations” at court.

News outlets covered many of these problems in 2014 (for example, an op-ed in the New York Times and my own piece in the Guardian). Since then, the United States Supreme Court had a chance to make right some of these wrongs in Elonis v. U.S, which also involved the issue of rap as threat — in this case, appealing the conviction of a man sentenced to prison for posting violent lyrics on Facebook. But nothing much came from the redress. The conviction was overturned, but with attention to federal threats law, not the issue of rap. “It didn’t clarify much in the long run,” First Amendment scholar Clay Calvert said in a 2015 Time interview. “They totally missed the rap issue.”

In Knox and Beasley’s case, with no real attention to the music, the only discussion of the lyrics came — believe it or not — from the police officers themselves, who were allowed to describe the lyrics at court, interpreting the song as they saw fit. In so doing, they were able to impose violence on the lyrics whether or not it actually existed: “They said they wanted to kill us and that, you know, they knew our schedule and where we worked, and that they know they would attack us. And there was gunfire throughout the video, and … numerous other terms that you would associate with guns, caliber, stuff like that.”

The judge seemed to accept this uninformed analysis, ruling: “It is abundantly clear to me that the conduct of the defendants here is not protected by the First Amendment because it far exceeds what the First Amendment allows.” Knox and Beasley were both found guilty. At sentencing on March 6, 2014, with about a dozen police officers in attendance, Knox spoke on his own behalf. Though he did not explicitly connect “F* the Police” to protest on behalf of Ford, he did mention his friend. He also talked about the diversity of his music, which had achieved some recognition before his arrest: “I mean I have songs about God. I even make songs about my mom. I even make songs about, you know, how to stop violence.”

It was at this hearing that Mikhail Pappas, then a law student at the University of Pittsburgh School of Law, met Leon Ford. The two began working to ensure Knox appealed his guilty verdict. Pappas first contacted the ACLU, and after the ACLU declined to take the case, he decided to take matters into his own hands. He connected Knox with Nightingale, who is now his lawyer, and established a startup, Legal Means, to raise awareness and resources in support of Knox’s appeal.

Today, Beasley is free, having served his time, but Knox remains behind bars, due to a drug conviction and punishment for “F* the Police.” Nightingale and Pappas remain hopeful that Pennsylvania’s high court will recognize the importance of Knox’s case. Pappas explains, “The issues involved in this case are at the front and center of our collective conscience as a nation and even our presidential debates. It would be difficult to imagine a case of greater social importance.” And, for Pappas, the case is also personal. “I grew up on the East side right around the way from Jamal. I love rap music. For me, it’s like what Killer Mike, whose dad was a police officer in Atlanta, said in his song ‘R.A.P. Music.’ Rap is so much more than music. It’s a source of salvation. Protecting it is what the very First Amendment is all about. For a court to rule that its mere creation is a criminal act is the ultimate double standard.”

While Ford has found his voice as a mentor and social activist, Knox has maintained more modest ambitions. As he explained at sentencing, “I want the Court to look at me as Jamal Knox, a human being.” In his letter to me, he also made it clear that he plans to continue his work with music. Even after all of this, he will not give up on his art: “It’s how I vent,” he said, whether “happy, sad, or angry.” And he will keep his head up no matter what, urged on by the pride he feels in knowing he is not alone. His case, he believes, is about more than himself: it’s about “every person that’s my complexion.” Justice for Knox, then, would have symbolic value, especially today. It’s about maintaining trust in the justice system. It’s about living up to a promise that justice can be blind. But it’s also about Jamal Knox — one person, a human being, who never should have been convicted for a song.

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]]> https://theestablishment.co/why-are-we-sympathetic-to-the-murderers-of-disabled-children-805a9bbadf98/ Thu, 23 Jun 2016 15:07:09 +0000 https://theestablishment.co/?p=7881 Read more]]>

“It’s critical that we be unified in condemning these crimes without reservation or qualification — the regrettable storm of sympathy from the media that surrounds parents who murder their children sets the stage for copycat crimes. Those who justify this are making themselves accomplices to the next such murder.”

Credit: Kelli Stapleton on Dr. Phil, YouTube

By Elizabeth Picciuto

Edmund is my sweet, sunny six-year-old son with twinkling green eyes, a dimply smile, and an abiding love of aquariums.

But here’s the horrible truth: If I were to murder him, the justice system might only give me a relative slap on the wrist. In fact, the media would likely portray me with respect and even sympathy. Really, it was her only way out, the poor woman. Her life was so difficult.

If I murdered my other two children? I’d be treated with all the spitting vitriol and passionate hatred typically reserved for mothers who kill their children, like Casey Anthony and Susan Smith.

What makes Edmund different is the fact that he is disabled. He was born with a rare genetic disorder and as a result, has microcephaly. He is nonverbal and uses a wheelchair or commando crawls to get around. He receives all his nutrition through a feeding tube.

He is just as much one of the fiercest loves of my life, and occasional pains in the butt, as my two nondisabled kids. He deserves his joys, his accomplishments, his struggles, his relationships, his passions throughout the length of his life no more nor less than they do. And he deserves my support and love to get him there.

All of this may seem like common sense and humanity, but the fact is, disabled children are more likely to be abused and/or killed by their parents than are nondisabled children. And when parents do kill disabled children, the media almost always presents one of two narratives: the harried-but-saintly parent who couldn’t bear the terrible burden and (understandably) snapped one day, or the saintly parent who killed out of the tenderest of mercies.

These narratives are not only disturbingly dehumanizing to those with disabilities, but also actively dangerous.

It happens again and again. Another story of a disabled child murdered by a parent, by the very person he or she should have been able to trust the most. And the powers that be, the media and the justice system, too often rush to that parent’s defense and rain down blame on the child.

Take the case of 14-year-old Issy Stapleton, who was almost killed by her mother Kelli Stapleton in 2013, just after she had told Kelli, “I love you, Mommy.” Kelli was featured in a two-part Dr. Phil episode that portrayed her as a victim of Issy’s difficult behaviors (Issy is autistic). Dr. Phil McGraw, the host of the show, said outright that he was convinced Kelli didn’t deserve any prison time.

Another, slightly more nuanced article in New York magazine is unusual in that the writer, Hanna Rosin, actually spent time with Issy. Still, however, the article catalogs Issy’s difficult behaviors and ends on Kelli’s expression of remorse, as if Kelli is being way too hard on herself. Isn’t it tragic, the article seems to suggest, that Kelli can’t forgive herself?

Neither Dr. Phil nor the New York piece mention that, like so many other perpetrators of murder and attempted murder of their own disabled children, Kelli Stapleton had access to plenty of other options short of murder.

First of all, the day of the attempted murder, Issy’s family had been awarded a disability waiver by her state, which gave her access to accommodations that most families, including mine, can only fantasize about. Most notably, Issy would have a full-time aide at home. Kelli never needed to care for her alone.

Kelli also mentions to Dr. Phil that a social service worker had once brought up the possibility of foster care for Issy. Kelli waved it away, and he didn’t follow up. Why not?

And even without these additional supports . . . are we really to believe that killing her child was a reasonable option?

Ari Ne’eman is president of the Autistic Self-Advocacy Network, a disability rights organization that advocates for autistic people. He wrote me in an email:

This extensive study of homicides of people with disabilities suggests that sympathetic media portrayals of murders as mercy killings in fact do lead to copycat murders. And murders of developmentally disabled children are increasing.

Still, the damaging narratives continue.

In May 2015, according to the Chicago Tribune, Bonnie Liltz killed her 28-year-old disabled adopted daughter Courtney by poisoning her through her feeding tube. Bonnie tried to commit suicide as well, but survived.

According to the Tribune, Bonnie has severe health problems and said she was concerned about what would happen to Courtney after she died. Bonnie did not want Courtney institutionalized, since she had once been placed temporarily in an institutional setting, and she found Courtney unwashed and in a diaper that needed changing.

The prosecution asked only for probation for Bonnie. For a mother charged with manslaughter of her own child. The judge overrode that decision and gave her four years.

I have the privilege of not being currently ill, but I certainly know all too well the stone-cold fear of what will happen to Edmund after I’m gone. He’s only six; I’m sure that fear will only intensify.

I understand the fear Bonnie had. I dread the thought of Edmund in an institution; I have agonized over the prospect of neglect and abuse.

But what I mainly feel is grief and rage for Courtney’s life. Because that’s what it is: Courtney’s life — not Bonnie’s. It’s not up to a parent, ever, to presume that her healthy child would be better off dead than alive. And that is what Courtney was, healthy. Bonnie wasn’t making a medical decision for her terminally ill daughter. She decided to kill someone who had years and years of life and choices and pleasures and relationships ahead of her.

This article from The Washington Post covering the Liltz trial is a prime example of the mercy killing narrative. As writer David Perry points out in a blog post, the article in its entirety considers the situation from Bonnie’s point of view — how she must have been feeling and thinking, her justifications.

At one point, Courtney is described in a brutally dehumanizing five lines, each line on a separate paragraph as if to poetically punctuate the supposed awfulness that was Courtney’s life:

“Glasgow [Bonnie’s lawyer] said Courtney’s capabilities did not extend beyond a toddler’s.

She could not walk or talk.

She could not eat normally.

She could not use a toilet.

‘She took on somebody nobody else would take on,’ Glasgow said of [Bonnie].”

My son could be described that way now, and quite possibly as an adult. But you could also say:

“Edmund laughs whenever anyone wears a silly hat.

He loves to scramble up into his grandmother’s lap and give her wet kisses.

His favorite movie is Finding Nemo.

He worships his older brother, has a love/snatch-toys relationship with his younger.

He wants to have the same three books read to him over and over.”

There is but one line in that Washington Post article that describes anything at all positive about Courtney, about her interests, and what she might have liked to have done with her life had it been allowed to continue: “Courtney, despite her challenges, was seemingly happy — spending her time watching Bert and Ernie, or playing on the floor with her toys.” Yet even in this, phrases such as “despite her challenges” and “seemingly” undercut the message.

One other line notes Courtney squeals with happiness when seeing a friend.

The rest of the article is about Bonnie’s physical illness (which indeed seems severe and incredibly difficult to deal with), her justifications for killing her daughter, and a litany of caretaking acts performed, such as feeding, dressing, bathing, etc.

In all, the piece could not be more well-designed to elicit sympathy for Bonnie and alienation from Courtney, who seems a sheer burden, not a full human being.

There are many other cases of caregivers given too-gentle treatment by the press or justice system. Alex Spourdalakis was 14 when he was brutally stabbed to death by his mother and another caregiver. In one article, his death is explained away by saying “[t]hose who know the family say it is a tragic end to a long and desperate search for help.” However, unbelievably, the very same piece also notes that the Illinois Department of Children and Family Services confirmed that Alex’s mother had been offered more services, but she’d refused them.

The Autistic Self-Advocacy Network notes that within two weeks after an airing of a CBS news report about Alex Spourdalakis’s killing sympathetic to his mother, Kelli Stapleton attempted to kill Issy, and a mother named Marilyn Edge succeeded in killing both her daughter Faith and her autistic son Jaelen.

Gigi Jordan was fabulously wealthy and certainly not harried when she killed her eight-year-old autistic son Jude, but was convicted of manslaughter, not murder. When six-year-old London McCabe was thrown over a bridge by his mother, a headline termed her “overwhelmed.” Robert Latimer has been widely portrayed as “compassionate” and a loving father both in the Canadian press and at times within the judicial system for killing his daughter Tracy.

No. Hell, no. It is never and in no way okay to kill your child.

I urge you to reject those poisonous narratives. Reject it just as surely as you would if you read a sympathetic article about a kind, wonderful father who couldn’t deal with his non-disabled two-year-old daughter’s very frequent temper tantrums (two-year-olds really can be so difficult), who “just snapped” one day and killed her.

Of course I get that it’s difficult to raise a disabled child in an ableist world. I live it every day. Yet millions and millions of parents around the world just like me do the same — and we do not kill our children. It’s hard, but we do the best we can, and sometimes we screw up, and we love them, and it’s frustrating, and exhausting, and enlightening, and encouraging.

And there would be no graver insult to my son than not to see me as fully culpable for harming him.

We need to stop these demeaning narratives and recognize the full humanity of the victims. Not only because they are unfair to Issy Stapleton and Courtney Liltz, but because we can also prevent future tragedies from occurring.

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