Taking the Word “Judge” Out of Context

A new UK book about sexual assault reveals some judges’ disturbing if not particularly unexpected views about victims of sexual assault and their personal role in “interpreting” sexual assault laws.

Judges have undermined a law intended to stop defence lawyers cross-examining women in rape cases about their sexual history, by continuing to insist on their discretion to allow it, a new book discloses.

Interviews with 17 judges in London and Manchester found that some insisted they still had a wide discretion to allow questions on sexual history, although the law was changed in 2000 to impose severe limits on questioning.

One judge described the provision as “pretty pathetic because it’s get-roundable”.

Another said: “I’m not one for being unduly fettered. I’ve been appointed to do a job on the basis that I have a certain amount of judgment, and to be fettered or shackled by statutory constraints I don’t think helps anybody.”

In other words: “I’m a judge goddammit. That means it’s my job to judge. Who said anything about the law?” Or, perhaps: “Oh yeah, well I judge that your law is stupid! In your face!”

Silly me, I always thought that “law school” centralized the idea of “the law.” But then again, I also assumed that in order to graduate from law school, let alone become a judge, one would need to have at least a basic grasp of logic, reason and ethics.  Clearly, I’ve misunderstood something.  I was under the impression that the job of a judge in a jury trial is to “judge” whether or not proper, legal and fair court proceedings are being followed, not to “judge” whether or not an accuser is chaste enough to deserve the legal protection to which she is entitled.

After all, it couldn’t be possible that people are willing to make really stupid arguments that make themselves look like total morons so long as it means their position of authority within the social order is upheld.  Could it?  I mean, if that were the case we’d have men running around arguing that rape is the fault of women because men are immature, untrustworthy, sex-crazed lunatics who can’t be held responsible for what they do with their penises when they see a woman in a short skirt.  Oh, wait.  My bad.

Now, 17 judges don’t constitute a proper survey. But the anecdotal evidence that the interviews supply is frightening. Also, though the data from their further research is not published (I guess they want you to buy the book), large numbers of future judges and lawyers see things similarly. And surprise, surprise, so do jurors:

Sexual Assault and the Justice Gap: A Question of Attitude, to be published by Hart Publishing on April 15, puts much of the blame for the low conviction rate on myths and stereotypes about the crime.

The authors say the entire justice process is affected, from the initial decision to report the rape to police, through to conviction or acquittal by a jury.

The authors – Jennifer Temkin, professor of law at Sussex University, and Barbara Krahe, professor of social psychology at the University of Potsdam in Germany – found stereotypical views about rape were widespread among potential jurors.

Their survey of more than 2,000 members of the public aged 18-69 showed people tended to blame the woman for bringing the attack on herself, see a case where the man had sex with a woman without her consent when she was drunk as not a “real rape”, and downplay the seriousness of having forced sex when the perpetrator was the woman’s former partner.

The views were also found to be common when the authors outlined a range of rape scenarios to British undergraduate law students in their final year and a group of British graduates doing professional law training, the lawyers and judges of the future.

Well that’s hardly reassuring. It’s also exceedingly important; we’re often led to believe that if we just wait things out, the younger generation will fix everything with their fresh ideas. While ideas do of course evolve naturally over time, this isn’t always a swift process, and it’s never a magical one. It takes work.  The “younger generation” still grew up in the same society, surrounded by the same prejudices. Waiting for the old guard to retire is not only a lazy and unacceptable solution — it’s not a solution at all.

Because judges are people. And like all people, they hear whatever they want to hear:

A high court judge told the Guardian that the extent to which lawyers should be allowed to ask questions about a woman’s past sexual behaviour was still “a big issue” for judges.

The limits on questions about sexual history came into force in December 2000. But in 2001 a case called R v A went to the House of Lords, in which the defendant claimed that he had previously had sex with the complainant and that this was relevant information for the jury in deciding whether she had consented on this occasion.

The law lords’ judgment gave judges only slightly more leeway to allow questioning in such cases, but the authors say some took it as having completely restored their discretion. Six of the 17 judges interviewed were “plainly undeterred and, regardless of the new legislation, were not prepared to forgo their discretion in these matters”, they say.

I file this under “authority without effective oversight always preferences (white, straight, Christian, cis, able-bodied) men.”  And the file is getting pretty fucking full.

If you think that this is a purely British phenomenon and that American judges, lawyers and juries are somehow different, at least your delusions are pleasant ones. But they’re delusions all the same.


0 thoughts on “Taking the Word “Judge” Out of Context

  1. sara

    Sadly, this is par for the course, for both liberal and conservative lawyers in both the UK and the states. Somewhere along the way, being a judge stopped being about applying the law and started with this “interpretation” bullshit.

    Of course “interpretation” is just an excuse to either ignore existing law or make up blatantly new law as you go.

  2. Cara Post author

    Well it is a judge’s job to interpret the law, to some extent (just like it’s the Supreme Court’s job to interpret the Constitution). Unfortunately, laws are not usually written perfectly, and so they generally do require some small level of interpretation. The problem is that there’s a difference between interpreting the law in one of a few reasonable ways and just making shit up as you go along. Sadly, the word “interpret” has, as you’ve said, been co-opted to mean “whatever I see fit.”

  3. Kristen

    “one would need to have at least a basic grasp of logic, reason and ethics.”


    Wait…you seriously thought that? Really?

    One of the first things you learn in law school is that lawyers and judges manipulate the law to get what they believe is a “fair” result. Sometimes this judicial activism makes me happy (Roe). Sometimes this judicial activism makes me sad (Korematsu).

    But logic and reason are tools to achieve a result not a process by which we achieve justice.

    Now I’m going to go have a stiff drink and wonder why I got into this profession again.

  4. Cara Post author

    Well I never said that I expected anyone to ABIDE by them, just have a grasp of them — and therefore being able to make a better argument than “I’m a judge so I don’t think the law has any bearing on my job.” And none of the judges quoted in this article seem to have even made an attempt to actually justify their total disregard for the rules.

    Also, I’m not sure that Roe really falls under the definition of judicial activism. I thought this referred to times when judges take a case in front of them and use it as an opportunity to make a far-reaching ruling that wasn’t exactly the question at hand — i.e. the recent NY case where a woman sued her employer for discrimination on the grounds that they would not provide health benefits to her same-sex partner, and the judge used it as an opportunity to rule that NY State must recognize legal same-sex marriages performed outside of the state. The question at hand for Roe actually was whether or not laws outlawing abortion are Constitutional. Am I mistaken on the definition of “judicial activism?”

  5. Kristen

    Judicial activism is specifically failing to adhere to precedents. Often it is used in contrast to strict constructionism. In that sense, Roe, even though it is clearly the correct decision, is the product of judicial activism (as are Brown, Lawrence, and many other critical decisions that forwarded human rights).

    More generally, I think it’s become a political insult to throw at judges whose decisions people don’t agree with, for example neocons cite Lawrence as judicial activism while liberals might cite numerous decisions restricting gun regulation as judicial activism. Neither are actually in the Constitution, but courts find language to support their positions (sometimes – as with gun regulation – against the commonsense understanding of the text) and decide as they choose to decide.

  6. lepidopteryx

    It shouldn’t matter if the woman has just had sex with 47 guys at one go. If she says “No” to number 48, and he forces the issue, it’s rape.

    It shouldn’t matter if they’ve had sex before, if they used to be a couple, or even if they’re married. If she says “No” and he forces the issue, it’s rape.

    If she’s too drunk to say “Yes” or “No” and he decides to assume that silence (or unconsciousness) is equivalent to consent, it’s rape.

    It shouldn’t matter if she’s a prostitute. If she says “No” and he forces the issue, it’s rape, even if he leaves money on the bed.

  7. lepidopteryx

    Yeah, I thought about it. Briefly. But I figured I wouldn’t make much of a living at it if I wasn’t willing to defend people I knew were guilty, and I couldn’t do that in good conscience.

  8. Pingback: Rape myths, rape myth acceptance, and community perceptions of victims of sexual violence — Hoyden About Town

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s