Skip to main content

I take a look at some of the horrible insinuations, statements, and questions used by defense attorneys to impugn the character of a 21-year-old female midshipman.

Written by Erin Matson for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

Recently, attorneys defending three former Naval Academy football players against allegations of sexual assault at an off-campus party spent more than 20 hours over five grueling days questioning, taunting, blaming, shaming, and what appears to be re-victimizing a 21-year-old female midshipman.

At one point, the midshipman said she was too exhausted to continue testifying and the commander presiding over the hearing granted her a day off. "This is borderline abusive," her attorney Susan Burke said upon leaving the Navy Yard that day. Abusive, yes, and sadly all too instructive in how rape culture encourages attorneys, members of the media, and others to turn sexual assault victims into the accused.

The routine process of victim blaming, as illuminated by this Article 32 hearing, serves to silence other sexual assault victims, generate sympathy for rapists, and create doubts that the definition of sexual assault includes anything beyond a stranger jumping out of an alley and raping a sweet, chaste woman wearing modest clothing.

In this case, the midshipman saw social media posts that led her to believe she was raped while drunk. All three defendants admitted sexual contact with the midshipman on the night at the center of the allegations—either to her, or prosecutors. What follows is a look at some of the horrible insinuations, statements, and questions used by defense attorneys to impugn the character of the midshipman, which offer an entry point to talk about and refute rape culture as a whole.

How do you perform oral sex?

Defense attorneys repeatedly asked the midshipman how she performs oral sex. This question is irrelevant, even though one of the defendants has said that he put his penis in her mouth that night. Here's the deal: It doesn't matter if a sexual assault victim has had sex, and it doesn't matter how she (or he) prefers to have sex. People are biologically driven to have sex. Sex is part of normal life. A history or manner of having oral sex, or rough sex, or any specific style of sex, does not mean that you can't be sexually assaulted orally, or roughly, or in that specific style. There are infinite ways to have sex, minus one: Sex without consent isn't sex. By definition, it's rape.

Tell us about your sex life.

Along with repeated queries about how she performs oral sex, the midshipman was asked to describe her sex life in detail. This, like the oral sex question, is also irrelevant and demeaning. Casting the spotlight on a victim's sexual history in the context of discussing her (or his) rape serves to make others imagine the victim sexually. It serves to degrade her (or him). Sharing your sexuality with others is a personal choice. Being cast in a sexual light can be highly desired, even great, when freely chosen. But painting a sexual picture of someone when they haven't asked you to serves to shame, silence, and sluttify.

You had sex with him before, right?

The midshipman and other witnesses were called to say that one of the defendants had a history of consensual sex with her prior to the night listed in the sexual assault charges. But this is irrelevant. There is no social role—boyfriend, girlfriend, husband, wife, best friend, casual sex partner, community leader, religious official—that renders a person unable to rape. The only way to not be a rapist is to not rape. Further, consent is never permanent. Consenting to sex once or even 1,000 times is never consenting to future sex. Consent must be given for every single sex act, every single time. Sexual contact without consent is sexual assault.

But you were flirting!

In tandem with conflating and purposefully confusing previous consensual sex with rape charges, defense attorneys suggested that she was flirting that night. The dog whistle hangs rather obviously in the air: She's a slut, they're arguing, she wanted it. As nearly everyone who has attempted romantic interaction with another can say from personal experience, the interpretation that someone is flirting with you does not mean that someone has the intent to flirt with you, and vice versa. Heck, let's even say she was flirting. Flirting is neither a crime nor an invitation to commit a crime. Flirtation never forces rape. Flirtation never excuses rape.

Did you "feel like a ho" the next morning?

This really happened: The defense attorneys asked the midshipman if she 'felt like a ho' the next morning. Applying derogatory terms about sex workers to anyone, including sex workers themselves, is a tool of sexual dominance. Questions like these make it so painfully obvious why sexual assault victims can be hesitant to come forward. If you say something, they'll trash you. They really will.

You must be hiding something.

While being compared to a "ho" and asked to describe how she performs oral sex, the midshipman said that she hadn't always been totally forthcoming with information. For any sexual assault victim, it's not hard to fill in the blanks and explain why. When people come forward about sexual assault, the spotlight is put on them, and it is not flattering. Giving rapists a pass and denying that victims have been victimized, or at least making them appear unreasonable, is what rape culture is all about.

"Drunk sex is not sexual assault."

Defense attorneys said that a blackout state induced by alcohol "is a function of memory. It is not an attribute of capacity." This argument is to say that a person saturated with alcohol can do anything, they just may not be able to remember it. That is not true physically, legally, or mentally. An extremely drunk person may be too incapacitated, physically, to walk or speak, or too incapacitated, legally, to drive or operate certain equipment. So, too, an extremely drunk person may be too incapacitated, mentally, to consent to sex. It is irrelevant how much, if any, alcohol is involved: The burden to not rape will always be on rapists, not victims. There is no free pass to rape a person unable to offer meaningful, understanding, reasonably aware consent to sexual contact.

What should we take away from this awful hearing?

Defense attorneys painted the midshipman as a "bad girl" in order to raise doubt about the rape charges against the three former Naval Academy football players charged with sexually assaulting her. In so doing, they relied upon sexism and stubborn myths that make it easy for rapists to get away with rape.

The myth that "good girls don't get raped" is one of the cruelest lies to be found in the intersecting worlds of male dominance and rape culture. It serves to shift the focus of sexual assault conversations from perpetrators to victims. Culturally, we can understand why this happens, even when women, who are more likely to be victimized by sexual assault, participate.

If there were a checklist to follow that means we couldn't be sexually assaulted, then we wouldn't have to live in fear of the reality that sexual assault will almost inevitably touch our lives or the lives of people we know. We wouldn't have to filter online dates with a wary eye, or drink apple juice at the party, or clutch our keys when we walk home at night. We could just not be sluts. Unfortunately it doesn’t work that way, and the practice of victim blaming neither protects anyone nor creates a climate where women can participate freely in public life the same way men can, including taking a keg stand at a college party where football players are present.

In the context of legal proceedings, a negative focus on victims carries an additional punch. The Naval Academy rape hearing is so gut-wrenching because the woman for whom prosecutors are seeking justice was treated as much (or more) of a defendant as the three alleged rapists.

In our legal system, the burden of proof is on the state to prove that a defendant is guilty. It is a flaw in logic, to say nothing of lazy lawyering on behalf of a defense team, to insist that if a victim is proven guilty a defendant is innocent. Unfortunately, this is often the case when men are put on trial for rape allegations, and it's happening here within the context of the military chain of command presiding over a sexual assault case.

As RH Reality Check's Adele Stan has written on the ongoing push to remove the military chain of command from sexual assault prosecutions in the context of this case:

Those who advocate taking the authority to prosecute such cases out of the hands of the commanding officers of those accused of sexual assault say there is little hope that the military’s rape-culture crisis will dissipate until the immediate commanders of the accused are taken out of the picture.

Certainly, rape culture is a terrible beast, and it came out on full display within this brutal rape hearing at the Navy Yard. It's a vicious lie to insinuate that you can avoid the threat of rape by being a good girl. Good girls can get raped and bad girls can get raped, and every time, it's rape. Women (and men) can wear miniskirts and flirt and still get raped. Drunk people can get raped. Drunk people can rape. Victims are not the problem.

A decision is forthcoming as to whether this specific case at the Naval Academy will proceed against the defendants, and it's also up for grabs whether the U.S. Naval Academy Superintendent will be removed from the case. Given an ongoing push on Capitol Hill to better address military sexual assault, it is likely that additional legislative debates about military sexual assault prosecutions will come along on their own timelines. Whether the routine practice of victim blaming within a broader rape culture is allowed to continue, however, is up to all of us. Perhaps this case has been vomit-inducing enough to advance the conversation.

Originally posted to RH Reality Check on Fri Sep 13, 2013 at 12:33 PM PDT.

Also republished by Military Community Members of Daily Kos and This Week in the War on Women.

Your Email has been sent.
You must add at least one tag to this diary before publishing it.

Add keywords that describe this diary. Separate multiple keywords with commas.
Tagging tips - Search For Tags - Browse For Tags


More Tagging tips:

A tag is a way to search for this diary. If someone is searching for "Barack Obama," is this a diary they'd be trying to find?

Use a person's full name, without any title. Senator Obama may become President Obama, and Michelle Obama might run for office.

If your diary covers an election or elected official, use election tags, which are generally the state abbreviation followed by the office. CA-01 is the first district House seat. CA-Sen covers both senate races. NY-GOV covers the New York governor's race.

Tags do not compound: that is, "education reform" is a completely different tag from "education". A tag like "reform" alone is probably not meaningful.

Consider if one or more of these tags fits your diary: Civil Rights, Community, Congress, Culture, Economy, Education, Elections, Energy, Environment, Health Care, International, Labor, Law, Media, Meta, National Security, Science, Transportation, or White House. If your diary is specific to a state, consider adding the state (California, Texas, etc). Keep in mind, though, that there are many wonderful and important diaries that don't fit in any of these tags. Don't worry if yours doesn't.

You can add a private note to this diary when hotlisting it:
Are you sure you want to remove this diary from your hotlist?
Are you sure you want to remove your recommendation? You can only recommend a diary once, so you will not be able to re-recommend it afterwards.
Rescue this diary, and add a note:
Are you sure you want to remove this diary from Rescue?
Choose where to republish this diary. The diary will be added to the queue for that group. Publish it from the queue to make it appear.

You must be a member of a group to use this feature.

Add a quick update to your diary without changing the diary itself:
Are you sure you want to remove this diary?
(The diary will be removed from the site and returned to your drafts for further editing.)
(The diary will be removed.)
Are you sure you want to save these changes to the published diary?

Comment Preferences

  •  it is estimated that 1 in 4 women in the military (14+ / 0-)

    will be raped at least once during her service.  That does not take into account unreported rapes.  Then we also have reports about how women are intimidated into not reporting rapes with threats of punishment for various infractions (I think in this case, the woman was threatened with being written up for being drunk) or else threats that complaining will mean the end of their military career.

    I am not posting any links simply because a quick search turns up literally thousands of responses on accusations of rape in the military and there are too many to post.

    If unit readiness is such a priority in today's military, how can any unit be combat ready when rape victims have to serve with their rapists?  This is a cancer in today's military that has to be corrected as the top brass has never come to terms with the gender integration of the military.

    •  The US is a brutal, abusive culture (0+ / 0-)

      which is proven by a fighting force that doesn't even promote discipline.  It's a violent free-for-all.  Attack all, dignity for none!  Your comment that you aren't posting a link because there are thousands of them is heartbreaking.

      Please save a child's life.

      by kmfmstar on Sat Sep 14, 2013 at 03:09:44 AM PDT

      [ Parent ]

  •  Lieutenant Commander Tang obviously doesn't know (6+ / 0-)

    the Navy's policy on drunk sex.  If someone has even one drink, they have grounds to claim any sex was rape.  Everyone get's that training.

    "There are no atheists in foxholes" isn't an argument against atheism, it's an argument against foxholes. - James Morrow

    by kirrix on Fri Sep 13, 2013 at 01:32:23 PM PDT

  •  I don't believe in hell fire and brimstone (4+ / 0-)
    Recommended by:
    gffish, susans, Lujane, historys mysteries

    but sometimes I wish that I did because I would like to make sure that those that accuse and re-abuse the victim of rape in a courtroom go there to be forever tortured.

    Blame the victim happens all the time in other abusive situations but this is terrible.

    Makes me angry, in case you can't tell.

    "I want to live in a world where George Zimmerman offered Trayvon Martin a ride home to get him out of the rain that night." Greg Martin, Bishop of the Episcopal Diocese of Central Florida

    by CorinaR on Fri Sep 13, 2013 at 01:37:08 PM PDT

  •  My generic response to these kind of things. (2+ / 0-)
    Recommended by:
    slowbutsure, Lujane

    Almost all defense attorneys must impugn at the very least the honesty of the rape victim. It's their job.

    When you have situation in which all parties agree to the basic facts (they had sex) and there's no physical evidence of intoxication (and there almost never is, unless the victim goes straight to the hospital) the entire case is over who is telling the truth and how supposedly intoxicated the victim was.

    Then you get stuff like this:

    A friend of the accuser testified Monday that the woman had told her that any sex with Bush was probably consensual.
    Lt. Cmdr. Angela Tang, an attorney for Graham, said the alleged victim was the “sexual aggressor” and that it was not Graham’s legal responsibility to tell her to stop. “People drink and people have sex and it’s not a crime,” Tang said. “And that’s what this was.”
    •  perhaps it is their job, and we can have feelings (0+ / 0-)

      and think it disgusting and immoral how they do their job, and protest.

      Perhaps some day they won't be allowed to do certain things, argue certain ways, against rape victims. THere are all sorts of legal restrictions/rules for what lawyers can argue in various kinds of cases it seems to me (I say this as a lay person though).

  •  There's a trial going on in Atlanta (5+ / 0-)

    where the defendant allegedly dragged a woman into a car at gunpoint and kept her thre while he went on a crime spree ending in her rape.  His lawyer's strategy is : 10 why didn't she fight him? (maybe the gun had something to do with it?) and 2) he's so good-looking it was consensual (he's a heavy set man who looks like a leg-breaker).  I guess from now on the Twinkie Defense will be replaced by the He's-So-Hot-She-Couldn't-Resist Defense.

    The last time we mixed religion and politics people got burned at the stake.

    by irishwitch on Fri Sep 13, 2013 at 03:15:04 PM PDT

  •  What can we do about this case? (0+ / 0-)

    Naval Academy. Is this in a military trial of some kind or was this in a civilian court (guessing the latter).

    Is there a website we can inundate with comments and complaints? A person responsible to contact? I couldn't find anything.

    That high school girl who this happened to in the past year? was slut shamed by her town as well. Almost identical case it seems.

    The public reached out to her in many ways and reportedly she found that very comforting.

Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site