“With Liberty and Justice for All”: Victim-Blaming in the Court System

In The New York Times’ “The Opinion Pages” the recent hot topic for discussion was     “Young Women, Drinking and Rape.” Debaters against women binge drinking made statements such as, “protecting women is not ‘victim blaming’” and “nothing liberating about being wasted.” Counter-arguers that support the notion that excessive drinking is not to blame for female rape said “don’t shift the focus from men” and “blame rape’s enablers, not the victims.” The discourse about rape, being such a contentious topic, has become polarized into a two-sided argument with one side arguing against women drinking excessively and the other side arguing that rape is not caused by drinking. In either situation, analysis of the victim is central to the argument, while addressing the rapist (usually the man) is absent or weak. Thus, we can see how this argument becomes a product of social gender norms and constructs. This cylindrical focus on the woman reinforces the notion of rape as a “women’s issue.” Under this antiquated ideology that sexual assault is a female problematic, she, the victim, becomes the sole evidence for examination. Interestingly, we see this same dynamic in the court system, as the defense attorney often places the rape victim in the same predicament by having her be the central focus of the case, ultimately undermining her and drawing attention away from the male perpetrator.

To understand this relationship, in Freedman and Smith’s “Understanding Lawyers’ Ethics,” defense attorneys are described to “have an obligation to protect their client’s rights whether or not they believe the client to be factually guilty.” This understanding asserts that the defense attorney has an ethical obligation to defend and protect his client. This sounds logical. However, Freedman and Smith complicate this understanding as they place this model of thought in a complex, realistic court situation that asks you to cross-examine a rape victim after your client confesses his guilt to you. In order for the defense attorney to stay true to his “obligation,” he will have to portray the rape victim as being dishonest in court. The defense attorney might bring scrutiny to the rape victim’s sexual history, sexual orientation, manner of dress, and occupation to paint the image to the judge and jury that she was “irresponsible,” “regretful,” “vengeful,” “drunk,” and in the most ignorant cases “asking for it.” Nowhere in this discussion is the rapist or the male being examined to the extent of the victim. The victim is not only shamed by her experience of sexual assault, but she is also objectified in court and left vulnerable just like the manner in which she was exposed and defenseless to her predator.

Take for instance an example that effectively illustrates a rape victim who is in a situation where alcohol is involved and is undermined in court because of it. The following is a news clip about the Steubenville, Ohio high school rape case where a high school girl, incapacitated by alcohol, was sexually assaulted by her peers, as her assault was also documented on social media:

The prosecutor claims, “They took advantage of her when they knew she wouldn’t remember. She was the perfect victim.” The voiceover recites the defense attorney’s argument by saying, “The defense argued pictures of the accuser posted after the alleged incident prompted her charges.” Outrageously so, the defense attorney rebuttals the prosecutor’s claim with “Because immature kids submit a picture of her on the internet she’s humiliated. She has a couple choices. ‘Yes that’s me or I can’t remember what happened.’” Although the photo evidence demonstrates the victim in an objectified, vulnerable position, the defense attorney still attempts to maintain that his clients are not guilty of rape and paints the victim as though she is at fault for her situation and embarrassed because she was intoxicated and unconscious.

We can see here a direct correlation between The New York Times debate and this exact court situation. We ought to interpret these two examples as evidence that demonstrates how victim-blaming in court cases and in popular discourse is prevalent, as the female victim continues to be bullied, not only by her assaulter, but by part of the court system and popular culture as well. Here we should realize that the true ethical dilemma asks us, “Where is she, the rape victim, to go for protection and justice, if the defendant’s client is to be protected at the expense of her own dignity and self-worth?”

victim blaming

Statistics on who rape victims are and the percentage of women affected:


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8 Responses to “With Liberty and Justice for All”: Victim-Blaming in the Court System

  1. dlopezra says:

    It is really disempowering for women to be victimized in such a dehumanizing offense and have to undergo such scrutinizing situations even in the courtroom. To my understanding, rape cases dissect the victim more than the perpetrator. The Wall Street Journal published an article, ‘Rape in 2012: What the Data Show’ reveals that there has been an increase in the number of cases filed, yet the number of convictions is flat-ling. This statistic generalizes how victims become hopeless because in reality, rape cases are underreported and the long judicial process leads to a low conviction rate.
    The image that you have presented basically describes a typical rape situation in a nutshell. The majority of cases instantaneously assign blame to the victim for many reasons whether it’s their behavior, wardrobe, relationship status, environment, or sexual orientation; the first response is to assign blame to the victim. Personally that’s were the process is wrong, there needs to be a mental change in how courts address rape cases.

    • mfmyers says:

      Just a heads up, I think the article you’re referring to was about crime in India. http://blogs.wsj.com/indiarealtime/2013/09/12/rape-in-2012-what-the-data-show/

      India has certainly progressed (relatively speaking) in terms of human rights since it became independent, but I’m not really surprised by those statistics. Aside from the seriously messed up social issues and rampant corruption, India’s court system is ridiculously overburdened. I remember reading that the high court of New Delhi is 466 years behind schedule (yes, years).

      When a system can’t even process cases in a reasonable amount of time, you’d have to be pretty optimistic to expect some kind of justice–particularly when witnesses need to remember facts from years prior. India’s trying to speed up the process for rape cases in particular… but doing a shoddy job in slightly less time isn’t what I would call much of an improvement.

      • dlopezra says:

        Yes, the article does address rape statistics in India. However, whether it is India or the U.S., rape is a very critical and common issue. It is the harsh reality that both countries (even though they are drastically different from each other) demonstrate similiar evidence revealing that rape cases are still underreported and have low conviction rates.

  2. anapuri11 says:

    It’s amazing how this continues to be an issue. In a culture trying to (slowly) shift away from victim blaming, the court system impedes the societies growth by allowing the defendant to be innocent unless proven guilty. The basis of the courts and our view of justice becomes a double edged sword for those whom are victims of rape or sexual misconduct. In these sorts of cases I find the alleged victims wardrobe, or previous promiscuity to be irrelevant to whether or not evidence proves that they were raped. The victim should not be held accountable for actions taken outside of the timeline of investigation. It seems as though there is a standard of enhanced scrutiny for the victim of rape, and mostly their past, more than the alleged attacker.

  3. valenciaaz says:

    Coming from a a legal background and being that much more familiar with what they consider legal ethics I have struggled in trying to reconcile the gap between the world of academia and the world of law. In short, they are diametrically opposed and I see no reconciliation.

    First of all the ethics in law are quite different than what you will find in Kant or Mills or any other academic philosophy that one may try to apply. The attorney’s first and foremost ethical responsibility is to their client. PERIOD. The ethical responsibility of an attorney is to give zealous advocacy for their client. Regardless of how unethical we might think it is in a class room, in the real world of law, that is the reality. A client is entitled to have what they say classified as privileged, and an attorney can be disbarred for divulging privileged information to anyone outside of that relationship. I have supplemented the notes for 10-24-2013 to reflect an exchange with a very distinguished attorney. Furthermore a copy of ER 8 of the Arizona Professional Rules of Conduct are part of that supplement. When it talks about fraud or acts that question trustworthiness is mentioned, they are not talking about privileged information.

    With respect to the re-traumatizing of an alleged rape victim, that is a double edged sword. A person is presumed innocent until proven guilty. The burden of finding and declaring guilt is not up to the Defense Counsel, up to the victim, the judge, or even the prosecutor it is up to the jury of peers. I was taught a long time ago that it is not what you believe, your emotional catharses about how unfair the system is, or if you voted Democrat or Republican, it is and always will be by what you can prove. The three ways to obtain a conviction is through admission of guilt from defendant, evidence, or witnesses, that is it. However, I have seen many young men (mainly Black or Mexican) be convicted of a rape, and wind up getting “Downed (stabbed)” and or raped because the girl they had sex with did not have the moral strength to admit that she was sexually active or had sex with someone of color for fear of being called or appearing as if she is a “whore.” Yes it is sad when anyone gets raped and the traumatizing effects can last a long time, but the job of the trial court is to determine if the finding of facts supports the guilt or innocence of the accused.

    Rape always has trauma, rather a victim being violated against their will on a date, being abducted, sex trafficked, or when one is raped by the system and subsequently raped in prison as they lay bleeding out on the floor when they were falsely accused and wrongfully convicted. Respectfully, Race theory, Feminist theory, political theory, or even philosophical theories, ALL mean NOTHING in a court of LAW. As I have quoted in a number of cases I have prevailed in “Based on the aforementioned facts, it is as a matter of fact and a matter of law, the court must rule . . . ” Fact and law, that is all that matters.

    Finally, the reason I wanted to pursue my degree in Social Justice and Human Rights was so that I can make changes in society from the inside out. I have to go through much training to learn about social constructs and movements, political theory, and various human rights frameworks. In other words, I have to learn the rules of the game before I can be effectually activate and create change for the populations I want to target. Changing the law will not be done by expressing your theories or philosophies, regardless if you agree or not, it can and will only be done by becoming acquainted with the rules of the legal arena and bidding your war in accordance with those rules. That is why it is called a “court of law.”

    • yesdelrinc says:

      1. “First of all the ethics in law are quite different than what you will find in Kant or Mills or any other academic philosophy that one may try to apply.”

      2. “Respectfully, Race theory, Feminist theory, political theory, or even philosophical theories, ALL mean NOTHING in a court of LAW. ”

      Even though you are right, as in the court does not care about this, I along with all the theorists and philosophers you mentioned would agree that this is the exact problem. This idea of being “practical” when it comes to law in order to expedite cases and simply taking lawful situations at face-value, i.e. who defends themselves better in court or who seems guilty or not, lacks critical thinking and sophisticated interpretive skills–skills that theory teaches us to practice in the “real world.”

      Here is the issue, court systems want to make searching for justice a formulaic process in which fact is the ultimate identification of guilty or not guilty. Yet, are all the facts presented? What about the honesty of the lawyers, the honesty of the judge, the honesty of the jury, or the clients themselves? Is the defendant in cahoots with the prosecutor? Should the victim be portrayed a certain way to make your client appear innocent? All these are legitimate questions that start to show how we cannot just rely on the presented facts to make a crucial decision about the lives of individuals–that the ethical dilemma rests in facts and the entire context of the situation. Court systems attempt to employ an objective process for justice, an almost scientific look at who is guilty and who is not. This is impossible. This manner of operating a legal system does not consider the intersections of race, class, and gender that are often invisible, and that all of us are entangled in some way. Practicality does not account for indirection, and indirect oppression is often the most harmful.

      Also, your argument is also starting to sound like the popular phrase, “theory is just theory–” as though social theory and philosophy do not have a stake in these critical social events or as if they should only be contained within the university. The fact that theory is restrained to the university is why court systems and even legislatures are so corrupt. Politicians, lawyers, legal officials need to read better books. Maybe they should start reading Aristotle, Bell Hooks, Gloria Anzaldúa, Cornel West…maybe then the court will finally have a keen understanding of what it means to be a human in our complicated, messy, subjective world.

      P.S. You might find this interesting, as a way of thinking how theory and law can come together. The Perpetual Peace Project aims to have a conversation with political leaders around Kant’s understanding of peace by actually reading Kant’s together. They have already done it at the United Nations.

      “This project is a partnership between the European Union National Institutes of Culture (EUNIC), the International Peace Institute (IPI), the United Nations University, Slought Foundation, and Syracuse University. It joins theorists and practitioners in revisiting 21st century prospects for international peace. The project finds its public form in symposia, exhibitions, lectures, as well as a feature film organized around Immanuel Kant’s foundational essay “Perpetual Peace: A Philosophical Sketch” (1795), which itself takes the form of an international treaty exploring the possibility of permanent peace. Positing peace as an unnatural state that must be enforced by international laws and governing bodies, Kant effectively anticipates multilateral institutions like the United Nations and the European Union. Though the essay’s ironic tone suggests the impossibility of this vision, one of its ultimate goals is to nevertheless challenge the politicians who mock the concept as “a childish and pedantic idea,” and to create in their place a newly discursive space for discussing peace and international law.”

      • valenciaaz says:

        I understand where you are coming from and surely your perspective. I believe you and I had some of the same professors for Philosophy and Rhetoric so I share some of the same sentiments that you do. I am not abandoning that groundwork to become a better critical and analytical thinker. Kant was good when the UN was forming, the challenges to create that type of change in a system a couple of hundred years old is entirely a different story. The legal world is a lot different than the academic world. It is admitted by people in both arenas that even the very language is diametrically opposed.

        Theory is “just theory” if it can’t with stand not only literary criticism but realistic application. I am not saying change can’t come. People in the legal world are highly educated individuals, it would be presumptuous and perhaps a little naive to think that they are NOT well read or educated. Some of their resumes are so rich you would think all knowledge would die with them when they passed away.

        Very few times a case comes along that will be a case that effect society in a way that will change it forever. While these theories we have spoke of can truly enrich ones self and self awareness and certainly impact the way we view the world and the decisions we make, respectfully I submit to you that you will never see a case cited proclaiming Kant’s categorical imperatives, only cases that were previously judged in similar circumstances by higher courts will be cited to support the parties argument.

        I will leave you with a last but important point: “Roe v. Wade” They knew if they approached it from any other angle than “a women having a right to chart her own medical course” would lose. The “establishment” said that killing a baby in the womb was wrong. On that playing field pro choice attorneys felt they would have lost. It took thinking outside of the box and going to a different battle field to advance women’s rights in this area. So don’t misunderstand, I am not throwing the baby out with the wash. If you want to change the rules don’t waste your time with the players, go straight to the rule makers.

  4. kasaunde says:

    While I do agree “blaming the victim” in a rape case is utterly wrong, it is the world we live in that makes us doubt the “victim” however. Especially at such a young age, many girls “call rape” when they are embarrassed or regretful. It is for this reason I believe that it is important for the defense to uncover the dirty details of the cases. In this particular case there may have very well been video showing enough evidence for a conviction. But there are many cases where you are relying on hear say. Convicting someone of rape is no light matter, and the trials should not be taken lightly either. It is the defenses job to uncover discrediting evidence, as it is the prosecutors job to convince, and portray enough facts to uncover who is and who is not guilty.

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