“I do not wish [women] to have power over men; but over themselves.”

Mary Wollstonecraft, A Vindication of the Rights of Woman

Sexual Battery, a Serious Violent Crime

It’s 2017, not 1792. More than 200 years after Wollstonecraft published the above treatise. Yet, here we are still stuck in a “culture of acceptance” regarding criminal sexual battery, still sending the message that women have no rights to their own bodies, that women are of low worth.

What is “criminal sexual battery”? Generally, sexual battery occurs where a person, without consent, touches another’s private, intimate body parts with the intent of sexual arousal, sexual gratification, or sexual abuse. Laws and penalties regarding sexual battery (i.e., “sexual assault”) have become more serious in recent years:

“As sex crimes move away from a gender-based male-oriented perspective, the crime has become firmly entrenched as a type of violent intrusion within the realm of assault and battery.”

Stephen L. Friedland, et al., Criminal Law: A Context and Practice Casebook 435 (2016).

However, while most state legislators consider sexual battery a serious crime, even making it punishable as a felony in many states, pockets of society are locked in outdated, erroneous gender-stereotypes. This unfairly prejudices criminal case outcomes, and it results in fewer reports of sexual battery crimes. Perpetrators of the crime rarely face prosecution or serious penalties, even where irrefutable evidence of felony crime exists.


Gender Stereotypes & Cultural Acceptance of Sexual Battery

We live in a culture that accepts sexual battery for teenage girls as a regular rite of passage. This is a culture that overwrites truth, and not only disregards real victims of crime, but also blames victims for others’ criminal behavior.

“Societal ambivalence towards [acquaintance sexual assault] is based on a special permissiveness regarding male sexual aggression against female social acquaintances.”

Steven L. Friedland, “Date Rape and the Culture of Acceptance,” 43 U. Fla L. Rev. 487 (1991).

Society more readily lets offenders “off the hook” when a victim is a teenage girl because archaic stereotypes persist. Pop culture still circulates the stereotype of males being ‘aggressive,’ dominated by hormones, sexually repressed, and given to misreading female cues. And it bombards us with images of the ‘punished’ teenage girl whose clothes or behavior suggested she wanted to be molested (i.e., she “was asking for it”).


Worth of a Woman: $1 Per Grope

A recent case in Pennsylvania illustrates the ways such stereotypes influence outcomes of reported criminal sexual battery.

Here, the judge fined a perpetrator convicted of repeatedly harassing a fifteen-year-old female a whopping $1 for each grope. Judge Nauhaus, who has come under fire for controversial rulings before, said, ‘”Listen, I can name at least one adult that thinks that’s okay … he’s an important guy.'” The judge seemed to imply President Trump’s comments about groping women’s vaginas made criminal sexual battery “crass,” but socially acceptable.

The real question is whether you find yourself agreeing with the judge. Consider the facts:

  • This was a case between two students–one female and one male. The female alleged the male touched her crotch without her consent. Has a crime occurred? You don’t have many facts yet, but you’re likely reconstructing the narrative in your mind anyway. You’re likely interjecting your own experience, scenes from pop culture, movie and music video images, etc., to fill in the gaps. Without knowing the female or the male, you are forming assumptions. Perhaps you’re questioning the female’s motives for reporting. Maybe you’re questioning her credibility. You may even be wondering what she was wearing and whether she was flirting. Your thoughts are already prejudiced by latent gender-based stereotypes. Is this fair? 
  • The fifteen-year-old victim was walking down the hallway to class at the time of the incident. The seventeen-year-old male defendant approached and grabbed her crotch. The victim pushed him off. Unrelenting, he grabbed her crotch again. She pushed him again, more forcefully, into the lockers. A teacher had to intervene and ‘break up’ the conflict. A witness reportedly said the victim ‘aggressively defended herself.’ Does this change things?
  • Reportedly, this wasn’t the first time this boy assaulted this girl. He’s a football player who has targeted this girl multiple times before. This was the first time the girl reported. What are you thinking now?  There are multiple offenses. Shouldn’t that increase the severity of the crime? And yet, you likely find yourself wanting to know why she didn’t report those other incidents. You may even find yourself saying, “Well, if she didn’t report those incidents, then she must’ve consented.” It doesn’t matter that the assumption is contradicted by the facts–the female’s ‘aggressively’ fighting the defendant and her reporting the latest incident to police to prevent any more attacks. You still want to question the victim, her motives, her behavior.

What about the male? His actions? His repeated actions he took knowingly without consent? Why not question his behavior? His motives?

Sadly and unreasonably, many focus more on what the female could have or should have done instead of on what the male did. The real issue is why anyone would question this fifteen-year-old girl at all. There were witnesses. The male admitted what he did was “wrong.” He was convicted of harassment. So if you found yourself still questioning the victim in the above scenario, you should examine why.


Some Victims Worth More Than Others

Are you part of the culture of acceptance regarding criminal sexual battery? If the victim were your fifteen-year-old daughter, would that make a difference? (It shouldn’t, but does it?)

What if this had been a ninety-year-old nursing home patient confined to bed who had been molested by an attendant? What if it had been a six year old grabbed inappropriately by her gymnastics coach? What if it had been a seventeen year old asleep in a sleeping bag who was molested by a family acquaintance within the house? A thirty year old asleep on a subway train who was groped by a stranger?

Stereotypes prejudice our objective judgments for particular categories of victims. Unfortunately, those most likely to suffer sexual battery are those most likely to be stereotyped–females between the ages of 12 and 28.

People v. Iniguez

In People v. Iniguez, a court of appeals overturned a conviction where the victim was a twenty-two-year-old female sleeping on the floor in her aunt’s home, and the defendant was a family acquaintance. In the case, the defendant “accosted” the sleeping victim, partially undressed her, fondled her, and raped her for “approximately one minute, without warning, without consent, and without a reasonable belief of consent.”

The Court of Appeal ignored the defendant’s conduct, focusing instead on the victim’s response. They questioned why, when the victim woke up mid-act, she didn’t scream, despite medical expert testimony explaining the very common biological response to trauma coined “frozen fright.” They overturned the jury’s conviction saying, “Nothing of an abusive or threatening nature had occurred … screams presumably would have raised the aunt and interrupted [the sexual assault].” 7th Cal.4th 847 (Cal. 1994). It didn’t matter that the defendant had admitted he had no consent for sexual contact.

Again, the Court of Appeal statement illustrates how pervasive stereotypes lead to unfair, prejudiced outcomes. Fortunately, in People v. Iniguez, the California Supreme Court disagreed with and reversed the Court of Appeal holding. They said this:

“Any man or woman awakening to find himself or herself in this situation could reasonably react with fear of immediate and unlawful bodily injury. Sudden, unconsented-to groping, disrobing, and ensuing [sexual assault] while one appears to lie sleeping is an appalling and intolerable invasion of one’s personal autonomy that, in and of itself, would reasonably cause one to react with fear … this scenario, instigated and choreographed by defendant, created a situation in which [the victim] genuinely and reasonably responded …(.)” People v. Iniguez, 7 Cal.4th 847 (Cal. 1994).

Higher Costs for Victims Than Offenders

Thankfully, the California Supreme Court got it right. Yet, such stereotyping is exactly why so many victims are leery of reporting sexual battery crimes. Too often, victims are questioned, humiliated, and further exposed only for their perpetrators to get off for less than the cost a cup of coffee.

It is unacceptable for sexual battery to cost less than a morning espresso at Starbucks. Cost less than a fine for littering. Cost less than the penalty for spraying graffiti on the side of a building. Sentences like Judge Nauhaus’ communicate females are worth less. Less than the dirt and grass beside our roadways. Less than chattel.

Gender-based prejudice says teenage girls and females in their early twenties don’t really have a universal human right to autonomy within their own bodies. It ignores the Supreme Court’s ruling no one–even a woman’s own husband–has an “enforceable right” to interfere with a woman’s personal choices.

Call to Action

It is time for society to step up. Say, “Enough.” All issues of women’s health begin here. Unless there is action, unless legislators feel the pressure of collective voices, nothing will change. Unless perpetrators bear more cost than victims, these crimes will continue to go unreported.

Perpetrators know this. They continue gambling with the crime of sexual battery because the odds are stacked in their favor. Unless the cost to perpetrators outweighs the benefit they derive from committing these crimes, they will likely continue their acts.

This is a call to action. If the standard followed by law enforcement and courts is the reasonable person standard (i.e., “What would a reasonable person think?”), then the logic follows that sexual battery victims need more objective, reasonable, unprejudiced persons to speak out.

Collective voices of reason MUST make it clear sexual battery on anyone–five-year olds, fifteen-year olds at school, sleeping seventeen-year olds, autistic sixteen-year olds, ninety-year olds in nursing homes–is an unacceptable, serious crime with actual, serious consequences. Unless we make it clear criminal sexual battery is unacceptable, sexual battery will be reduced to nothing more than a symbolic crime–a symbolic crime impotent of its purpose to protect the most vulnerable in society.