Recently, attorneys defending three former Naval Academy football players against allegations of sexual assault at an off-campus party spent more than 20 hours over five grueling days questioning, taunting, blaming, shaming, and what appears to be re-victimizing a 21-year-old female midshipman.
At one point, the midshipman said she was too exhausted to continue testifying and the commander presiding over the hearing granted her a day off. “This is borderline abusive,” her attorney Susan Burke said upon leaving the Navy Yard that day. Abusive, yes, and sadly all too instructive in how rape culture encourages attorneys, members of the media, and others to turn sexual assault victims into the accused.
The routine process of victim blaming, as illuminated by this Article 32 hearing, serves to silence other sexual assault victims, generate sympathy for rapists, and create doubts that the definition of sexual assault includes anything beyond a stranger jumping out of an alley and raping a sweet, chaste woman wearing modest clothing.
In this case, the midshipman saw social media posts that led her to believe she was raped while drunk. All three defendants admitted sexual contact with the midshipman on the night at the center of the allegations—either to her, or prosecutors. What follows is a look at some of the horrible insinuations, statements, and questions used by defense attorneys to impugn the character of the midshipman, which offer an entry point to talk about and refute rape culture as a whole.
How do you perform oral sex?
Defense attorneys repeatedly asked the midshipman how she performs oral sex. This question is irrelevant, even though one of the defendants has said that he put his penis in her mouth that night. Here’s the deal: It doesn’t matter if a sexual assault victim has had sex, and it doesn’t matter how she (or he) prefers to have sex. People are biologically driven to have sex. Sex is part of normal life. A history or manner of having oral sex, or rough sex, or any specific style of sex, does not mean that you can’t be sexually assaulted orally, or roughly, or in that specific style. There are infinite ways to have sex, minus one: Sex without consent isn’t sex. By definition, it’s rape.
Tell us about your sex life.
Along with repeated queries about how she performs oral sex, the midshipman was asked to describe her sex life in detail. This, like the oral sex question, is also irrelevant and demeaning. Casting the spotlight on a victim’s sexual history in the context of discussing her (or his) rape serves to make others imagine the victim sexually. It serves to degrade her (or him). Sharing your sexuality with others is a personal choice. Being cast in a sexual light can be highly desired, even great, when freely chosen. But painting a sexual picture of someone when they haven’t asked you to serves to shame, silence, and sluttify.
You had sex with him before, right?
The midshipman and other witnesses were called to say that one of the defendants had a history of consensual sex with her prior to the night listed in the sexual assault charges. But this is irrelevant. There is no social role—boyfriend, girlfriend, husband, wife, best friend, casual sex partner, community leader, religious official—that renders a person unable to rape. The only way to not be a rapist is to not rape. Further, consent is never permanent. Consenting to sex once or even 1,000 times is never consenting to future sex. Consent must be given for every single sex act, every single time. Sexual contact without consent is sexual assault.
But you were flirting!
In tandem with conflating and purposefully confusing previous consensual sex with rape charges, defense attorneys suggested that she was flirting that night. The dog whistle hangs rather obviously in the air: She’s a slut, they’re arguing, she wanted it. As nearly everyone who has attempted romantic interaction with another can say from personal experience, the interpretation that someone is flirting with you does not mean that someone has the intent to flirt with you, and vice versa. Heck, let’s even say she was flirting. Flirting is neither a crime nor an invitation to commit a crime. Flirtation never forces rape. Flirtation never excuses rape.
Did you “feel like a ho” the next morning?
This really happened: The defense attorneys asked the midshipman if she “felt like a ho” the next morning. Applying derogatory terms about sex workers to anyone, including sex workers themselves, is a tool of sexual dominance. Questions like these make it so painfully obvious why sexual assault victims can be hesitant to come forward. If you say something, they’ll trash you. They really will.
You must be hiding something.
While being compared to a “ho” and asked to describe how she performs oral sex, the midshipman said that she hadn’t always been totally forthcoming with information. For any sexual assault victim, it’s not hard to fill in the blanks and explain why. When people come forward about sexual assault, the spotlight is put on them, and it is not flattering. Giving rapists a pass and denying that victims have been victimized, or at least making them appear unreasonable, is what rape culture is all about.
“Drunk sex is not sexual assault.”
Defense attorneys said that a blackout state induced by alcohol “is a function of memory. It is not an attribute of capacity.” This argument is to say that a person saturated with alcohol can do anything, they just may not be able to remember it. That is not true physically, legally, or mentally. An extremely drunk person may be too incapacitated, physically, to walk or speak, or too incapacitated, legally, to drive or operate certain equipment. So, too, an extremely drunk person may be too incapacitated, mentally, to consent to sex. It is irrelevant how much, if any, alcohol is involved: The burden to not rape will always be on rapists, not victims. There is no free pass to rape a person unable to offer meaningful, understanding, reasonably aware consent to sexual contact.
What should we take away from this awful hearing?
Defense attorneys painted the midshipman as a “bad girl” in order to raise doubt about the rape charges against the three former Naval Academy football players charged with sexually assaulting her. In so doing, they relied upon sexism and stubborn myths that make it easy for rapists to get away with rape.
The myth that “good girls don’t get raped” is one of the cruelest lies to be found in the intersecting worlds of male dominance and rape culture. It serves to shift the focus of sexual assault conversations from perpetrators to victims. Culturally, we can understand why this happens, even when women, who are more likely to be victimized by sexual assault, participate.
If there were a checklist to follow that means we couldn’t be sexually assaulted, then we wouldn’t have to live in fear of the reality that sexual assault will almost inevitably touch our lives or the lives of people we know. We wouldn’t have to filter online dates with a wary eye, or drink apple juice at the party, or clutch our keys when we walk home at night. We could just not be sluts. Unfortunately it doesn’t work that way, and the practice of victim blaming neither protects anyone nor creates a climate where women can participate freely in public life the same way men can, including taking a keg stand at a college party where football players are present.
In the context of legal proceedings, a negative focus on victims carries an additional punch. The Naval Academy rape hearing is so gut-wrenching because the woman for whom prosecutors are seeking justice was treated as much (or more) of a defendant as the three alleged rapists.
In our legal system, the burden of proof is on the state to prove that a defendant is guilty. It is a flaw in logic, to say nothing of lazy lawyering on behalf of a defense team, to insist that if a victim is proven guilty a defendant is innocent. Unfortunately, this is often the case when men are put on trial for rape allegations, and it’s happening here within the context of the military chain of command presiding over a sexual assault case.
As Rewire‘s Adele Stan has written on the ongoing push to remove the military chain of command from sexual assault prosecutions in the context of this case:
Those who advocate taking the authority to prosecute such cases out of the hands of the commanding officers of those accused of sexual assault say there is little hope that the military’s rape-culture crisis will dissipate until the immediate commanders of the accused are taken out of the picture.
Certainly, rape culture is a terrible beast, and it came out on full display within this brutal rape hearing at the Navy Yard. It’s a vicious lie to insinuate that you can avoid the threat of rape by being a good girl. Good girls can get raped and bad girls can get raped, and every time, it’s rape. Women (and men) can wear miniskirts and flirt and still get raped. Drunk people can get raped. Drunk people can rape. Victims are not the problem.
A decision is forthcoming as to whether this specific case at the Naval Academy will proceed against the defendants, and it’s also up for grabs whether the U.S. Naval Academy Superintendent will be removed from the case. Given an ongoing push on Capitol Hill to better address military sexual assault, it is likely that additional legislative debates about military sexual assault prosecutions will come along on their own timelines. Whether the routine practice of victim blaming within a broader rape culture is allowed to continue, however, is up to all of us. Perhaps this case has been vomit-inducing enough to advance the conversation.