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It’s not just one judge E-mail
Wednesday, 04 September 2013 10:22

By Columnist Susan Estrich

It didn’t take long for Montana District Judge G. Todd Baugh to apologize.

On Monday, he handed down a sentence of 30 days (actually it was 31, but he gave him credit for having served one day already) to a former high school teacher convicted of raping a 14-year-old student – who committed suicide while the criminal case was pending. Explaining the result, he focused on the victim, saying she was “older than her chronological age” and “as much in control of the situation” as the adult teacher rapist.

The victim’s mother, sitting in the courtroom, screamed at the judge and stormed out, which in my book qualifies as a rather impressive show of restraint.

By Wednesday, it was a national story. Protests had been planned, and organizers were demanding his resignation.

In a letter to the local paper, the judge apologized. But his apology was as eye-opening as his sentence. While recognizing that his remarks were “demeaning of all women,” and that a 14-year-old “obviously” cannot consent (under the law, 16 is the age of consent), “I think that people have in mind that this was some violent, forcible, horrible rape. ... It was horrible enough as it is just given her age, but it wasn’t this forcible beat-up rape.”

So there it is.

The girl was, by the judge’s own assessment, a “troubled youth” of 14. She obviously couldn’t consent. But since this wasn’t, at least in the judge’s view, “a forcible beat-up rape,” he figured the man had already suffered enough.

Now, the easy answer is to assume that this is just one “outlier” judge with a crazy view of rape that he is probably regretting even as he tries to defend himself. If I believed that, I wouldn’t be wasting your time here. Judges make all kinds of mistakes that don’t deserve public attention.

But I don’t believe that for a minute. In the last election, remember, we had a member of the House, a major party nominee for Senate, opining about how “legitimate rape” victims don’t get pregnant. “Legitimate rape,” for the past century or so, has been considered to be the kind of “forcible beat-up rape” for which real punishment might be imposed.

I wrote a book about this nearly 30 years ago. It is called “Real Rape.” It focuses on one of the painful lessons that I learned as a victim: that people were willing to accept that I was “really” raped only after I described the “forcible beat-up rape” I’d endured.

But what about all the other rapes – rapes without weapons, rapes of girls too young or not competent to consent? Rapes of women by men they know and do not dare say no to? Are those somehow not “real” rapes?

In the 30 years since, men and women across the country have worked hard to change the way rape laws are written and enforced to recognize that you can be raped without being beaten up; that force takes many forms; that there can be no consensual sex where one party cannot consent as a matter of law. Progress has been made, but clearly not enough.

What U.S. Senate candidates and judges blurt out are not thoughts that they alone have.

How can it be that we are still fighting this fight after so many years?

What harm is there in being absolutely clear to those who would have sex with people they don’t know or can’t trust that they should take no chances and err on the side of no sex? Unromantic? Maybe. But rape isn’t very romantic, either.

I was traveling last spring, recruiting first-year law students, and I was touched when one after another told me that they had read excerpts from this early work of mine in their introductory criminal law casebooks. When I went to law school and when I started teaching law, the books didn’t even have sections on rape.

So there’s progress. But the fact that the problems I was grappling with nearly 30 years ago continue to have resonance in law school classrooms and in courtrooms and in Senate races is something I never would have predicted.

And so we fight on.

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