The Link Between Justice Alito's Leaked Abortion Opinion and Rape Culture

by Sherry F. Colb

When people speak of "rape culture," what they mean is that society normalizes rape in one or more of a variety of ways. To normalize rape is to treat it as a normal behavior that is really not that big of a deal. The law can normalize rape directly by allowing some classes of rape and classifying the remaining subset as, in the words of Susan Estrich, "real rape." Sir Matthew Hale (MH), a British jurist from the seventeenth century with a starring role in Samuel Alito's (SA's) leaked opinion in Dobbs v. Jackson Women's Health Organization, promoted and served as a famous apologist for the marital rape exemption, a legal immunity for men who rape their wives, an immunity that lasted in this country until the late twentieth century. By allowing men to force their wives to have intercourse against their will, the marital exemption law fully normalized this form of rape and thus contributed enormously to rape culture (though no one had yet coined the phrase). 

The law can also normalize rape and thus bolster rape culture by in theory prohibiting a class of rape while simultaneously making it nearly impossible to prosecute. MH was a busy beaver in strengthening this form of rape culture too, by advocating for heightened skepticism of rape complainants. Such skepticism was factually baseless but spawned a jury instruction that I find nauseating and that also lasted in this country for several hundred years. In MH's immortal words, "[i]t must be remembered, that it [rape] is an accusation easy to be made and hard to be proved, and harder to be defended by the party accused, tho never so innocent."

The message--a lie--was that women frequently dissemble about rape, more often than other types of witness dissemble about other crimes for which juries hear no similar dishonest instruction. Today's version of this manifestation of rape culture is the common "he said/she said" trope enjoyed by misogynists in rape and domestic violence cases. In reality, the incentives for "he" and "she" are quite distinct. Alleged victims receive no systematic benefit from accusing a man of rape--a stigma still attaches to the status of rape victim, itself a feature of the woman-hating view that holds that, like a used car, a rape victim drops in value the moment she leaves the lot from her previous unused status. Indeed, it remains easier to convict a rapist when his victim is a virgin than when she is not, suggesting that juries regard the "real" harm of rape to be a kind of property devaluation that is largely mitigated when the victim was already a "slut." Some of the questions that rape victims must field in the course of a trial that some have called "a second rape" amount to the following slime: "Isn't it true that you're a slut?" Some especially agressive defense attorneys for rape defendants view such questions as absolutely essential; some also regard the presumption of innocence as a presumption that the woman is lying.

Yet another form of rape culture is the "blame the victim" mentality that has, sadly, remained with us despite legal reforms. People who blame the victim want to know what she was wearing (because such rape apologists view a revealing outfit as effectively a waiver of the right to refuse intercourse) and how sexually experienced she was at the time of the alleged sexual assault (this time because "sluts" turn men on, which obligates the woman not to frustrate the awakened desire and/or excuses men from failing to control themselves when they have heard of their future victim's "reputation" for being a "slut"). The expression "you look ravishing" references such logic because "ravish" means "rape," so the "compliment" amounts to a statement that "you look rape-able," which relocates responsibility for any rape to the (very flattered) victim.

So what does rape culture have to do with abortion and with SA's leaked opinion announcing that forced pregnancy and labor violate no liberty in the Constitution? As I and others have observed, SA says nothing in his leaked opinion about rape and incest victims, even though the Mississippi statute the Court will almost certainly be upholding in the next few weeks contains no rape or incest exception to the ban. These omissions in SA's leaked opinion and Mississippi law make rape and incest invisible, just as legally permitting men to force themselves upon their unwilling wives makes the violence of marital rape invisible. To offer an analogy, consider how the law in the southern states made the kidnaping, enslavement, and torture of African American enslaved persons invisible as did apologist works of literature like Gone With the Wind, a book that promotes what we might call "slavery culture" or "racism culture" by concealing the brutality, cruelty, and humiliation of slavery.

Despite propaganda to the contrary, large numbers of rapes yield a pregnancy (because the body in fact does nto have ways of shutting that whole thing down). All those victims and the fact of their victimization vanish when the law and the high court say nothing about them. "Nothing to see here," as the expression goes. This vanishing results in rapists holding the power not only to commit the traumatizing crime of rape but to decide to target women to involuntarily create the rapists' children and then labor to deliver those children. Such power resembles that of the commanders in A Handmaid's Tale, and it is the law that grants that power. It fully instrumentalizes a woman's body and ignores--and thereby normalizes--her victimization. SA quotes from the Mississippi legislature's fact finding about the miracles of fetal development (despite the inaccuracy of those "findings"--e.g., no heart exists at six weeks gestation; the sound is activity by early cardiac cells). But the (actual) experience by women of involuntary pregnancy and especially pregnancies resulting from rape is absent. If a problem is invisible and receives no attention from those appointed for life to guard our liberties, then it isn't a problem that we are meant to notice. In this case, it means that rape is--as far as SA is concerned--not a problem, not something worthy of condemnation, a remedy, or a nuanced view of unwanted pregnancy.

SA's use of rational basis scrutiny, which I analyzed in an earlier post, is another contribution to the canon of rape culture. Applying rational basis scrutiny effectively allows even trivial and plainly pretextual state or federal interests to override a woman's (or a trans man's or a nonbinary person's) interest in bodily integrity against the extreme violence of an unwanted intrusion into her most private places. A law that required blood donation from all citizens, a relatively minor intrusion, would trigger some form of heightened scrutiny and likely get invalidated, while the profound physical and psychological burdens of pregnancy and especially rape-induced pregnancy get the lowest and most deferential form of scrutiny. This choice by SA and the others effectively disappears the victimhood of anyone carrying an unwanted pregnancy and, most offensively, the rape victim who must now do what conquered women do after being raped by soldiers as an act of war (and a war crime)--carry forward the violation of bodily integrity that is the rape into an extreme extension of the bodily integrity violation that is an involuntary pregnancy. Once again, rape culture normalizes rape and often does so by pretending that there has been no rape--MH's formula disappeared marital rape and effecitvely disappeared non-marital rape as well.

Applying rational basis scrutiny amounts to spreading a cloak of invisibility over rape, incest, involuntary pregnancy, and involuntary labor, each of which is intimately linked with all of the others. In fact, because most of the Justices who oppose abortion are Catholic, I will here point out the idea that they endorse: that sex is for the purpose of procreation. If they are right, then the point of raping a woman is to impregnate her and force her to create and then bear her violator's child. Refusing to protect women's right to escape from pregnancy thus directly furthers the "natural" objectives of the rapist. This view of sex and women and pregnancy comes from a very simple idea about women: they are instruments for men's use, whether to force sex that the women do not want or whether to build a baby inside their bodies and then deliver that baby, all in great pain and against their will. Rape culture operates as a form of gaslighting too because it treats the trauma that women experience in rape and involuntary pregnancy as unworthy of mention. I cannot resist pointing out how effective the leadership of religious organizations has been at concealing sexual abuse that it preferred not to confront. Victims have said that even though the sexual assaults were horrifically traumatizing, the refusal of the institutions in which they had placed their trust to believe them or to do anything about what happened yielded a more lasting trauma. The silence and concealment, one might say, was the involuntary pregnancy that followed the sexual assault.

To resist rape culture, we would have to change a great deal. Despite the fact that marital rape is now a crime throughout the United States (as of the early 1990's), you will not see many prosecutions for this crime unless major injuries beyond the rape itself are evident or the couple has already separated by the time of the crime. Indeed, as mentioned earlier, acquaintance rape--which is more common than stranger rape--is also very difficult to prosecute because people who perhaps feel invested in minimizing the significance of the crime like to declare "he said/she said" in the way that MH, their patron saint and that of SA, suggested. Domestic violence provokes similarly baseless disbelief, as the Heard/Depp verdict illustrated. This unsupportable skepticism of women who claim rape or domestic violence is what people are reacting to when they say, "Believe Women." They mean to try to escape from the irrational misogynies that produce the "he said/she said" mindset. Listen to what people say and think about whether something other than the desire to speak truthfully might be motivating them. Criminal defendants--including those accused of rape and domestic violence--always have such a motive because they never chose to litigate and they will go to prison if convicted, and police officers have such a motive as well when they testify (because getting the "bad guys" is their job). 

If you are inclined to believe a robbery victim's testimony (and you do not call the robbery prosecution a "he said/she said" case), then believe the rape victim too. She is no less credible than the robbery victim. And if you doubt what she says, ask yourself whether you are just falling prey to centuries-old rape culture. More relevantly (because you will serve on, at most, a few juries in rape cases), apply anti-rape-culture thinking to people who tell you that something happened to them. Resist the temptation to be irrationally skeptical of the victim of sexual violence and irrationally credulous when the accused gives you an earnest face and said "it was consensual; she's lying."

Skepticism of victims is not necessarily the mark of careful factfinding. The victim may say something that is flatly inconsistent with the other evidence, and you can certainly take that into account. But being anti-rape-culture means turning your skepticism on the very inclination to be skeptical. And to be anti-rape-culture, be sure to take note of every decision that SA made in composing his leaked opinion draft in Dobbs, so that you can do the opposite of no-longer-closeted misogynist SA. Women are not instruments to be forcibly penetrated, and they are also not instruments to be forcibly made to turn raw materials (which some religious people irrationally view as children) into babies as though a woman's reproductive tract is a public resource with a mandatory easement on it. Women, like our nonhuman animal friends whom most people consider resources as well, are "someones," not "somethings," a moral proposition that the theocrats on the Supreme Court would do well to understand.