Tuesday, April 24, 2018

How Denial Can Be Step One in Facilitating Harm

by Sherry F. Colb

My column for this week discusses a suggestion by Kevin Williamson, almost-columnist for the Atlantic, that women who have abortions should be hanged. I explore how his statement is misogynistic in a way that the pro-life position itself may not be (at least not inherently). I am pro-choice, so I regard the pro-life position as harmful to women in its effect, but pro-life advocates could reasonably disagree with me about the likely impact on women of prohibiting the procedure in the future. And for those of you who have read a New York Times column saying that the end of Roe v. Wade would likely leave abortion legal in many states, there is no reason to think that is true. With both Houses of Congress and the President in the Republican camp, Congress could outlaw abortion throughout the country the very moment that the Court overturns Roe. In this post, though, I want to focus on one feature of what makes Williamson's words about abortion after Roe so offensive. It is the denial that they entail.


As I explain in my column, there is good reason for people who oppose abortion to nonetheless refrain from urging punishment for women who abort. The reason has to do with the contrast between what people ordinarily face when they refrain from killing someone, on the one hand, and what pregnant women face when they refrain from killing their fetuses, on the other. "Choosing life," in the context of an unwanted pregnancy, means enduring months of an often-uncomfortable, back-pain-inducing, nausea-causing, pre-eclampsia-and-gestational-diabetes-risking, condition of having to hold a growing living being inside one's body, followed by an excruciatingly painful process and/or major surgery, both of which can leave injury and disability in their wake, along with a potentially heightened risk of developing autoimmune disease. The U.N. has classified the absence of abortion access as a form of torture, a classification that makes sense precisely because of what staying pregnant and then delivering against her will does to a woman's body.

None of this, of course, challenges the claim by pro-life advocates that a zygote, embryo, or fetus is entitled to be treated as the equal of a newborn baby or a three-year-old child. Michael Dorf and I have expressed and explained, in Beating Hearts: Abortion and Animal Rights, our view of when in pregnancy "someone" with rights or entitlements should be understood to have come into being. But, for purposes of our discussion here only, I am not disputing the competing view of the fetus's moral status that pro-lifers hold. I am suggesting instead that no matter how inherently valuable and sacred one considers a fetus, it blinks reality to suggest that a woman who has had an abortion is morally indistinguishable from someone who kills a victim who is physically separate from the killer. Surrounding circumstances inform culpability. To say that women who abort should be punished like any murderer, including the possibility of receiving the death penalty, thus exemplifies a form of "denial" that ignores relevant facts in the service of misogynistic ends.

So what is the moral difference between having an abortion and killing a physically separate being, if both killings take the life of a child? The difference lies in the circumstances, in the factual reality of what pregnancy imposes on a pregnant woman. If a non-pregnant person killed another person to avoid months of physical illness followed by hours of suffering torturuous pain, no one would seriously propose executing that person.

The U.S. Supreme Court in Geduldig v. Aiello held that excluding pregnancy from disability benefits coverage is not state-sponsored sex discrimination, because it simply distinguishes between pregnant and non-pregnant people rather than between men and women. This Orwellian ruling denied the nature of pregnancy as a uniquely sex-linked health burden, perhaps out of the desire to keep the male life cycle as the model on the basis of which the law is designed. Only a male supremacist could be satisfied that shutting "pregnant people" out of disability coverage treats people equally on the basis of sex. It is, instead, equality with a vengeance: Oh, you want us to stop making stereotypical assumptions about men and women? Fine, then we won't stereotypically assume that being pregnant has anything to do with being female.

Denial of this sort appears in areas other than the abortion and disability coverage contexts. One such area is rape. Everyone can agree in the abstract that rape is very bad. Even people convicted of violent crimes will sometimes reserve worse treatment for the convicted rapists in their midst. And when white Klansmen and other members of lynch mobs tortured and took the lives of African American men (and sometimes women as well), they routinely invoked rapes allegedly committed by the men to be lynched. In To Kill A Mockingbird the supposed rape victim comes to court to testify against the defendant. It becomes clear, however, that her father has beaten her to force her to testify falsely. The fake and pretextual charge was rape rather than a less serious offense like grand larceny, because rape is (sometimes) taken seriously. And today, most people probably view the rape of a woman or a man by a stranger as a horrible crime, and we can trust juries to give such rape charges the attention they deserve.

We know from surveys that stranger rapes are far less common than acquaintance rapes. The greater threat to women's safety and security in terms of numbers, then, is the threat that someone they know will rape them, a boyfriend or a spouse, for example. Yet despite the frequency of such rapes, the public becomes hugely skeptical of the victim's account of acquaintance rape in individual cases. A quote from Seventeenth Century English jurist Matthew Hale sums up the sentiment in play. He said that rape ‘‘is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, tho never so innocent.’’ Although women have no systematic reason to invent a rape charge in the way that Hale said, and although women in reality find it hard--not easy--to come forward with an accusation, skeptics say that it is difficult to know what happened, because there are no objective parties. Coming forward to say that she was raped thus compromises a victim's neutrality somehow, while the victims of other crimes confront little to no skepticism about their veracity.

What might account for the skepticism toward acquaintance rape victims? And why do many men (and some women) treat such victims differently from stranger rape victims? A possibility, I would suggest, is that by denying the rape victim's experience at the hands of her assailant, a misogynist culture denies that her experience qualifies as a rape at all. In other words, the official story is "I just don't have enough evidence. It's his word against hers, so I must conclude that he is innocent." This argument is transparently pretextual, because such people may have no trouble concluding that other accused criminals (including stranger rapists) are guilty, even when the only evidence of guilt is a victim's testimony. The unofficial story is accordingly: "She was not raped. They knew each other and went out on a date. What did she expect? He was entitled to have sex with her." Behind the pretense of evaluating the credibility of the story, in a manner that is consistently to the victim's detriment, then, is a denial that "rape" can happen when two people are on a date.

Denial can therefore connect to devaluation, as I suggested in an article called Words that Deny, Devalue, and Punish: Judicial Responses to Fetus-Envy. People deny that something is happening, whether that denial is explicit or indirect. Then, with that denial in place, they are able to devalue the one whose experience they have successfully denied, without owning up to the devaluation. The process is such that it can appear logical and objective. "Of course women who abort should be subject to the death penalty," one might say, "because having an abortion is no different from murdering anyone else." This account, as discussed above, denies the unique hardship of remaining pregnant and giving birth. Having denied this, the woman's choice to abort looks as culpable and easily avoidable as the choice to shoot a co-worker. If pregnancy is not sex-linked, then discriminating against pregnant people in disability coverage looks gender-neutral while it devalues pregnancy and women. The statement, "I cannot find the accused acquaintance rapist guilty based solely on what this woman (his date) says," denies the fact that acquaintance rape happens a lot and that we learn about its occurrence, as with many other violent crimes, through a witness's testimony. Having denied its occurrence, it makes perfect sense for one to leave the (supposedly nonexistent) crime unpunished. To this day, it remains difficult to successfully prosecute an acquaintance rape, despite its prevalence and the rarity of false accusations.

I recently read a paper by Aziza Ahmed, who teaches at Northeastern Law School and is currently a LAPA fellow at Princeton. She presented her paper at Cornell Law School, where she talked about the fascinating history of the AIDS epidemic in the United States. I had no idea about this, but the CDC, in the early period of AIDS, took the position that the diseases that female AIDS victims consistently developed were not signs of AIDS, by contrast to the diseases that male AIDS victims tended to develop (such as Kaposi's Sarcoma and pneumocystis carinii pneumonia). As a consequence, many women with AIDS received none of the Social Security Disability benefits that were supposed to accrue automatically to AIDS patients. This may have in part reflected the desire to avoid expanding the population of those eligible for benefits. One feature of this very interesting story that struck me was the denial of what was plainly happening to female patients. CDC officials claimed that they were doing everything based on science and would have classified the female illnesses as indicators of AIDS if that were scientifically indicated. But they concluded that it was not, a conclusion that allowed the government to spend its money on men. By denying women's illnesses, the CDC effectively and intentionally denied them coverage, thus devaluing their safety and wellbeing.

One reason to make a point of identifying when this denial-devaluation two-step is in effect is that it may sometimes feel like something invidious is going on, but people claim that they just have a different view of the facts. One might be confused into imagining that Kevin Williamson is not a misogynist, that he just believes that a fetus is a child and that murdering a child should be a capital crime.

But if you are left feeling like something is missing, you might go back and notice that to treat a woman who aborts as a murderer, one has to have denied and accordingly devalued the enormous sacrifice and pain entailed in pregnancy and labor. And if people's consistent refusal to "Believe Women," a centuries-old refusal that has now inspired a "Me Too" and "Believe Women" movement, seems ugly and invidious, it may be because it is. It may be that the denial in truth promotes devaluation of the gravity of the crime of rape when the perpetrator happens to be an acquaintance, someone who some believe has a right to have sex with his date, regardless of what she might want. And when doctors say things that purport to be objective science, it may be worth asking whether their conclusions deny a reality you know to be true in the service of devaluing something about that reality.

An interesting example of this phenomenon that is no longer officially in effect is the marital rape exemption. It used to be the case in every state, until the 1970's, that a man could rape his wife without violating the law. Michael Cohen, President Trump's bag man/lawyer, once reportedly spoke out in defense of Trump when Ivana Trump accused her ex-husband of rape. Cohen asserted that Trump never raped anybody but then added the following: "[O]f course, understand that by the very definition, you can’t rape your spouse.” “It is true,” Cohen said, “You cannot rape your spouse. And there’s very clear case law.”

The phrase "a man cannot rape his wife" captures the ideas that I have presented here. On the one hand, it sounds like a denial, like the speaker is claiming that it is physically impossible for a man to rape his wife; he simply cannot do it. But then the truth dawns on us. Not only can he, but the law allows him to and refuses to call it rape. The phrase is thus not honestly describing what happens in a marriage. It is instead trivializing the harm of spousal rape by placing it outside the category of criminal rape. This is devaluation disguised as denial. But fortunately, and contrary to Michael Cohen's impressively confident assertions, every state has abolished the complete impunity that it once extended to men who attack and sexually violate their wives. That abolition was an important first step.

The next step will be the willingness to believe the victims, dates and wives alike, who make an accusation against the men who many presume are entitled to "have" their women. That day will come, and when it does, we will know that people actually take rape seriously, regardless of who the perpetrator is to the victim and regardless of the parties' race. Then we will realize Oprah Winfrey's dream of a time "when nobody ever has to say 'Me Too' again."

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