Like many of you, I found multiple aspects of the Steubenville rape case disturbing: the brutality of the teens’ behavior, the bystanders’ paralysis, the impression that institutions of power may initially have circled the wagons around the perpetrators— as they have in many other cases — and that it may have taken attention from Anonymous and others to bring the case to trial.
Now that the dust has essentially settled, I’d like to offer two countervailing lenses through which to view the events. First, media chatter about a fixed, immutable “rape culture” is an overly simplistic view of how culture and norms are produced and reproduced; second, I think that the punishment the boys are receiving does not pass what John Rawls calls the “veil of ignorance” test, because the criminal justice system is so broken.
The widespread decrying of CNN’s sympathetic coverage of the two assailants is, I think, right and good. The “pity the lost futures of the rapists” was the wrong angle to emphasize, and journalists should know better than to reinforce the narratives that a teenage conviction will forever ruin your life (at the same time, Mia Mackenzie is right: “including these boys in our feelings of sadness is okay”). But I take issue with the notion that this proves America to be beholden to a monolithic, hegemonic rape culture to the exclusion of other attitudes and ideas. It reminds me of a tragicomic anecdote related by Wellesley anthropologist Sally Engle Merry. Professor Merry was called up by a radio host to get her take on a gang-rape in Pakistan. She explained that the rape was inexcusable, and shouldn't be taken as paradigmatic of “Pakistani culture.” Then, as Engle explains:
“The interviewer was distressed. She wanted me to defend the value of respecting Pakistani culture at all costs, despite the sentence of rape. When I told her that I could not do that, she wanted to know if I knew of any other anthropologists who would. I could think of none, but I began to wonder what she thought about anthropologists. Anthropologists, apparently, made no moral judgments about 'cultures' and failed to recognize the contestation and changes taking place within contemporary local communities around the world. This also led me to wonder how she imagined anthropologists thought about culture. She seemed to assume that anthropologists viewed culture as a coherent, static, and unchanging set of values.”
But this is not, as Engle elaborates beautifully, how culture works. Culture, rather, is “contested, hybridized, and dynamic … Culture is the product of historical influences rather than evolutionary change. Its boundaries are fluid, meanings are contested, and meaning is produced by institutional arrangements and political economy. Culture is marked by hybridity and creolization rather than uniformity or consistency.”
The same is resolutely true of America. CNN’s problematic coverage definitely represents one strain of thought in American life. But so, too, does the Gawker rebuttal, as well as the near uniform outrage that popped up on my Facebook. Rape, and rape culture, do not have fixed meanings. Their social and epistemological contours are contingent on how we talk about them, their presence or absence in American life, and how we react when they emerge. We who critique CNN are every bit as much a part of the culture as the news-people who made a phenomenally bad call on how to sell a story.
Further, I do not think that incarcerating the boys passes the veil of ignorance test. In brief, Rawls asks us to imagine ourselves as free-floating, rationally deliberative beings, with absolutely no knowledge of who we will be in the real world, and to design a theory and system of justice accordingly. The hope is that you come up with a system that doesn't privilege who you are, but rather is as fair as possible to all people. Behind the veil, not knowing who I would become, I think I’d want the consequences for juvenile rape to look something like this. First, the victim’s mental and physical well-being are the paramount concerns. I’d want a therapeutic and cultural buttress to reassure the victim that no, the crime was not their fault, that they did not deserve this nor do anything to make it happen, and that enduring stress and trauma were completely normal and would be treated with compassion and patience.
As to the rapists, I would emphasize education, rehabilitation and therapy. One aspect of this case that, I believe, has gotten insufficient attention is the possibility that, due to their relationship with the girl and exactly what they did, the boys didn't believe that they were raping her. I think that people’s image of rape in America is a stranger who assaults a woman with a weapon and forces her to have vaginal intercourse. None of these conditions (as far as we know) held in the Ohio case. I would want this case to be used to educate the rapists, and yes, America more broadly, that 1) acquaintance rape is by far more prevalent that stranger assault; 2) that extreme intoxication and inability to say yes mean “no;” 3) and that digital penetration and/or oral contact are sex and will be treated as such by the law.
I would want the rapists to emerge from the experience with a much deeper understanding of what consent means, taught by people who start from the premise that women are people and deserve all the rights and autonomy of men. I would want them to emerge with much healthier attitudes about themselves and the world, newly aware that what they did was evil, and that high-pressure social environments sometimes bring out the worst in us (or, as David McRaney puts it: “you are an individual with social chains binding both the darkest evil and the brightest good in your heart. You can’t truly predict what would happen if the three ingredients of deindividuation were added to your consciousness, anonymity, group size and arousal.” Put differently, evil is banal). You would want to treat them with some lenience, conscious that the minds and moral compasses of children are still developing. But you would also want the experience to be, in many ways, unpleasant and costly as a deterrent to others.
Putting the boys away accomplishes only the last of these objectives. The criminal justice system is fundamentally broken. It is punishment rather than outcome-oriented, profoundly bad at rehabilitation, and irreparably inhumane. The juvenile detention system faces similar structural faults.
I wish the rape had never happened; I wish teenagers had better judgment; I wish that human beings weren't so inclined towards evil in group settings and paralysis when they see it. But I also cannot cheer two more people becoming embroiled in a system that needs to be completely dismantled. The whole thing, from start to finish, is just sad. I see no silver lining.