Teri Kanefield @Teri_Kanefield Author, lawyer (U.C. Berkeley). An idealist who believes the American Experiment will succeed. I tweet about the law, books, politics, and history. Sep. 24, 2018 3 min read

(Thread) Rolling back the clock

Senator Graham: “I want to listen to her, but I’m being honest with you. . . what do you expect me to do?. . . ruin this guy’s life based on an accusation?”

A brief history of rape laws puts the current debacle in context.

1/ For much of world history, rape was a property crime.

An unmarried girl was her father’s property. A married woman was her husband’s property.

If a virgin was raped, the property damage was to her father.
If she was married, the damage was to her husband.

2/ If she wasn’t a virgin and wasn’t married, there was no crime (because the property was already damaged).

A man couldn’t rape his wife (his own property) and rape of enslaved women wasn’t a crime. Even after the Civil War, rape of a black woman wasn't recognized.

3/ The law was intended to protect (white) men from false accusation; not to protect women from attack.

The social hierarchy in the 19th & early 20th century determined the law: Black men were lynched if accused by a white woman, etc.

4/ Attempted rape wasn’t a crime because there was no property damage—what Graham was getting at when he said there was no crime because Kavanaugh respected her enough not to go through with it.  https://m.dailykos.com/stories/2018/9/19/1797143/-Graham-Attempted-rape-not-a-crime-Kavanaugh-respected-his-victim-by-not-finishing?detail=facebook 

5/ A woman’s behavior was taken into account: How was she dressed? was she out alone?

Rape was seen as natural result of "human" nature. Men were aggressors, so a woman was responsible for guarding her chastity.

What Rep. King was getting to here:

6/ As late as the 1970s, a defendant in a rape trial could present evidence that the woman had, in the past, engaged in sexual behavior.

The "sexual history" defense was based on 2 assumptions:
First, if she was unchaste or immoral, her word couldn’t be trusted.

7/ Second, if she wasn’t a virgin, there was no crime because the goods were already damaged.

By the 1970s and 1980s—under pressure from women’s activists—states enacted what called "Rape Shield Laws."

8/ These laws protected victims and prevented their sexual history from being used as a defense.  https://www.nolo.com/legal-encyclopedia/rape-shield-laws-protecting-sex-crime-victims.html 

Sexual assault (sexual touching without the act completed) is a relatively new crime.
Sexual harassment wasn’t taken seriously until the 1980s.

9/ The assumption was that if a woman received advances, she wanted it.

Brownmiller sent shockwaves in 1975 when, in Against Our Will, she argued that rape was not a natural result of human nature. It was a means of exerting patriarchal power.

10/ The Trump-GOP is (partly) a backlash against the Civil Rights & Women’s Rights movements👇 and an attempt to roll back the clock to the time when powerful men didn’t have to worry about being accused by less powerful (or not well-connected) women.

11/ Senator Graham’s statement—that basically Dr. Ford's word is a mere accusation, is a throwback to that era.

Actually, witness testimony IS evidence, and is evaluated for reliability, like any evidence.

Ann Coulter agrees with Graham👇

12/ Don’t be surprised.

There have always been women who have stood against advancement in women's rights.


Susan B. Anthony was up against a backlash of women who insisted that they “had all the rights they needed” and didn’t WANT to vote.

13/ In the1980s, women like Phyllis Schafly led an anti-feminist movement & derailed the ERA (she also endorsed Trump for president).

Some women, too, want a patriarchy, when “elite” white women were placed on a “pedestal.”

Now Kavanaugh’s accusers want an FBI investigation.

14/ The Trump-GOP says no to a full investigation, a way to not only to disbelieve, but also to silence the full story.

What's going on?

In the words of Profs. Ziblatt and Levitsky in How Democracies Die, "majorities rarely give up their dominant status without a fight.” 👇


You can follow @Teri_Kanefield.



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