JURY NEUTRALITY

It is a sad adage that for many women, their greatest fear is to be raped and killed, while for men it is to speak in public. What a chasm between the experiences of the two genders, both in perception and experience. Of course it is more complex than that, and every sentient being has a right to their “I” position – their personal point of view. But that right is theoretical in many settings, because to the detriment of us all, the male gender position has been considered to be neutral, objective, and correct. I offer one example here – a jury trial on domestic violence harassment. Here is the basic story, without confidential identifying details. Sadly, it is such a common story that I don’t have to worry about someone calling me out on publishing about it. It happens every day of the week.

A man asks a woman on a date. He is charming, funny, and seems genuinely interested in pursuing a serious relationship. He follows up by contacting the woman multiple times a day. He tells her she is his princess! After a few days, he gets mad because she went out with a girlfriend while he was busy. She says she won’t see him again, and he apologizes and says he was way out of line. A few days later, he starts to obsessively grill her about any past dating she may have done. She breaks up with him. He tells her she is a fat bitch. He tells her she is a filthy whore and he feels dirty because of touching her.   He tells her she is a fucking cunt. Then he starts apologizing. He tells her how sorry he is. She stays strong and repeats that she is not going to go out with him again.

The man calls her dozens of times within a single day, calling and texting, constant contact. At one point he sends her 50 texts in a single hour. He is sorry – he needs to explain, just give him a chance, if she would just meet with him once and hear him out then he will be okay. He has to talk to her! He HAS to!! She ends up agreeing to talk one last time – but based on her fears, just on the phone. On the phone, he is sinister. He warns her that she doesn’t know who the fuck he is. He is a secret agent, and has access to her personal information. He reads off her full name, her address, her place of employment, prior residences, and where her family lives. He tells her he suspects that she has talked about him to the authorities and he is going to come over and cut her left hand off. She tells him she is going to hang up and call the police, and he laughs and tells her he is the police.

There is such ample proof that at the end of the trial, the defense admits that the facts are not in dispute. It all happened, and he even acknowledges that the woman was afraid at some point.  But he argues in closing that her fear was not proximate, perhaps not a direct result of the alleged threat. As the jury later took it, the argument seemed to be that she was wrong to feel afraid. A “reasonable person” would not have been afraid.  Oh, and by the way, they were not really dating, which would make it domestic violence.  She just THOUGHT they were dating.

This story is not about the defense attorney, who happens to be one of the kindest, most fair-minded and thoughtful lawyers I know.  He did not cause the situation, he cannot control it, and he cannot cure it.  He is certainly not advocating for violence against women.  He is simply defending his client under the rules of the court.  This story is about a larger societal issue that goes beyond what any individual lawyer argues.  I want to examine the unspoken, usually unexamined assumptions that juries rely upon to make their decisions.  That is what I am trying to bring to light.  And these prejudices are not at all limited to the judicial system, but stream through every facet of the dominant culture.

During jury deliberations, the jury first tackles whether there had been a dating relationship.  Let’s see.  They met on a dating website, they talked several times, then they went on two dates.  They kissed goodnight, and made further plans.  They talked romantically on the phone for hours over many days. After he threatened to amputate a body part, she naturally declined to date him further.  Sounds like dating to me.  Very bad dating.  But dating.  Okay?  No, because one of the male jurors points out that in HIS world (the objective and correct one) “I don’t know about YOU guys, but I am not dating someone until we have gone out three times!”

Several male jury members jump in to testify and act as experts, replacing their version of the facts for the testimony of the victim, although the jury agrees they found her credible, and the defense did not dispute her version of the facts.  They also replace the law as given by the jury instructions with their personal opinions.  They seem to feel quite confident that this is totally reasonable behavior.   And based on the way our society works, it is fairly reasonable for a man to presume that his view of things is objective and correct.  This view is constantly bolstered throughout our society.

Back to the set of facts presented at trial.  Is the above set of facts a case of harassment, which means a direct or indirect threat? In our local law in relevant part ,a person is guilty of harassment if the person “knowingly” threatens to cause bodily injury immediately or in the future, or maliciously to do any other act which is intended to substantially harm the person threatened with respect to his or her physical or mental health or safety; and the person by words or conduct places the person threatened in reasonable fear that the threat will be carried out.

“Knowingly” is defined in relevant part as having information which would lead a reasonable person in the same situation to believe that facts exist which facts are described by a statute defining an offense. This is a statement almost impossible to digest, so as usual, the jury instructions break it down further and apply it to the specifics on this case. They state that to harass means that the speaker of the threat “knows” that a reasonable person would feel afraid of the threat.

Is there a question of whether the above scenario meets the threshold for harassment? Is there a reasonable woman who would question whether it is harassment? Is there a reasonable person? I am writing this article because the answer is yes. There is a reasonable person who would doubt this, and that reasonable person, the standard issue “reasonable person” is a man. Even though this state has changed the wording in the law from reasonable man to reasonable person some years ago, in practice, a reasonable person is still a man here and now. And we all live with the consequences.

Jury deliberations started with several men on the jury joking and laughing mockingly at the defendant. Who did he think he was? “What a loser! Boy, if he told ME he was gonna cut off MY left hand, haha, he couldn’t scare ME! And by the way, I never would have believed he was a special agent. Sure, buddy, what planet did YOU come from? Haha! A real James Bond, right? And as for knowing where I live, well, that isn’t scary. It’s not a threat to say you’re gonna show up on my front step.” Is it?

Uh, yeah guys. It is. For women. And possibly some men. But especially, given our rape-friendly culture, with its acceptance of male aggression, and the sexualization of women, and the commercialization of sex, and the broadened access to sex workers for less and less money, and the normalization of pornography and strip clubs in the mass media, there is an overall sense that especially dating hetero women should be accessible to all, and when they are not, there can be hell to pay. Just being a woman, living as a woman, and trying to date men in this hateful environment, the above set of facts constitute a threat. Even if Mr. Tough Guy can handle it fearlessly.

Even if Mr. Tough Guy is never scared on a date. Has never been scared on a date. Never worries about somebody following him home or breaking into his house. Has never been threatened or harmed by someone who started out talking of love and ended up talking of hate and violence, or just unexpectedly acting it out. Has never worried about being drugged on a date, or facing date rape, or any form of domestic violence. Just isn’t scared. Why isn’t he scared? Because he doesn’t have any reason to be, in this context, in general, on the whole. And because this typical guy has no reason to be scared of facing personal violence in dating situations, these jurymen – these objective, neutral and correct men – come in the end to the unanimous conclusion that the crime victim is not reasonable in HER fear. And so do the women. Because in spite of each person’s individual opinion, at the end of the day, the male gender role is accepted by everyone in the room to be neutral, objective and correct.

The victim’s womanly, subjective, and wrongheaded fear is determined to be NOT reasonable, while the juryman’s manly lack of fear is as a matter of course reasonable. To the jurymen, the perpetrator is someone to laugh at, not to fear.  He is just pathetic, this accused man with low status compared to the jury members – these jurymen who can afford to do jury duty because they either work for a local tech company, the government, or another job where they get full pay while on jury. And these men are laughing in the jury room, that a man with low status, a criminal really, would dare to threaten THEM, the higher ranking males! “Haha! Who does that asshole think he is? He doesn’t scare US!” Us and we. We and us. That cruel, painful, debilitating, killing “we” that excludes half the population based on our genitalia.

This writer is not a part of “we” and neither is the victim of this crime. Because “we” only includes the reasonable, neutral, objective, and (of course) correct male gender position, that I for one cannot and will not share.  And these men ARE correct, from the lofty and protected perspective of their personal point of view. This male defendant did not and will not threaten them. Has never wanted to and never will cut off one of their hands. They are extremely unlikely to be killed by a loved one, whereas if I am murdered, the statistical likelihood is that the killer will be my husband.

These men are correct about the suspect from their narrow male-centric view: He will not lie to them, pretend to love them, yell at them, bully them and be jealous of them, interrogate them, apologize to them, kiss them, then insult and threaten them. And maybe in a fit of rage show up at their home to rape and kill them. The defendant, according to the testimony, has a different victim, a woman, and she seems to be invisible.

One of the women on the jury quietly points out during deliberations that in the dating context, someone saying they know where you live already feels like a threat. A man shakes his head disparagingly. “Feels like?” he repeats, because of course a woman’s feelings are subjective, not objective like the male’s are. She is partial, not impartial like he was. And she is incorrect in saying how she would react to the threat, whereas he is correct in saying how he himself would react to the threat. All because of outdoor plumbing. Wow.

Remember, the jury is supposed to consider what a reasonable person in the same situation would feel, but due to inherent subconscious bias, they cannot seem to accept that the position of the woman who testified, the woman who dated the man who threatened her, is a “reasonable person”. I believe this is because she is a woman. The men of the jury simply cannot seem to put themselves in her position (that of a woman) and still feel like they are being objective. They automatically pull back from that situation, and return to the “objective male” point of view.

One of the men argue, “Come on. Nobody’s gonna believe that some guy’s gonna come over and cut off their hand! And so what if he knows where you live? Doesn’t mean he’s gonna DO anything about it! The guy’s a wimp!” The other men nod approvingly.

A jurywoman says, “Sorry, guys, but if somebody calls me a cunt and whore and tells me they want to come over and cut off my hand and then tells me my own address and where my folks live, I think it’s fair to presume they didn’t get that information because they want to send me flowers!”

But the men dismiss it. Because as they all agree, it’s just a line from a mob movie! They’ve all heard it hundreds of times! A woman points out that she herself has never heard it, as she doesn’t watch mob movies. There was no testimony that the victim took it as a movie line or a joke. On the contrary, even the defense attorney admitted she was afraid. This womanly comment about movie taste is also ignored and passed over as not relevant to their important task of being objective.

The male head of the jury who holds the jury instructions and is very reluctant to pass them around, informs the others that “the threat” has to be direct and specific, even though there is no such wording in the law or the jury instructions. In fact, the opposite is given: the threat can be direct or indirect, stated or implied, and it is required to take the surrounding context into consideration in deciding. But he just keeps drilling the women on the jury on whether they would feel sure the man would cut off their left hand, or just scared in general. Apparently being scared he would come over and do something is not enough – it just isn’t reasonable. You apparently in have to know ahead of time what this violent, aggressive, lying, jealous control freak who has your address will do. If you think he might cut off your right hand, or a leg, then he goes free. If he’s just coming over to rape you, well, he’s not cutting off your left hand, and that’s what he said. Crazy.

One of the women argues for reasonable fear and says again that she would feel afraid, and the man dismisses her with, “you can’t go with your gut – this has to be black and white!” She repeats that the aggressor has her address, etc. The juryman dismisses it again and then begins to testify as if he were the male accused (with whom he clearly identifies in their shared malesness). “Oh, come on! The guy slipped her last name which she hadn’t shared with him, and he was just embarrassed and he was trying to cover it with a bluff. Instead of admitting he was checking up on her, he just made up a stupid story about how he’s a special agent. I’d never fall for that!”

Wow. Once again, when a woman says what she feels, she is subjective. When a man says what he feels, he is objective. So glaringly obvious to me, and so apparently invisible to everyone else in the room. And disturbing.

When the woman tries to follow up on his personal opinion by saying what SHE thinks may have been in the mind of the aggressor and victim, he cuts her off by saying with a patronizing smile: “We’re not SUPPOSED to speculate!” Then he repeats his made-up story to clear the perpetrator of knowing intent: the guy was just embarrassed, although zero evidence was provided to support this notion. I have been embarrassed many times but it never made me threaten to cut off someone’s hand. But then I am just a woman.

One young man ends up saying, “I gotta wonder if this guy has a history of domestic violence.” And the jury spokesman responds puffed up like a bird in feather: “That was NOT presented in evidence! And we have to presume his innocence! I mean, a life is at stake here!”

Many lives are at stake here. In the very direct sense, at least two lives. For every crime, there is at least suspect and victim. For every crime, there are consequences for society as a whole. We – the we who are not manly objective – the “we” who have feelings and opinions based on our personal stories and our own experiences that have cut into our flesh as this accused has threatened to do – we also have a stake in this. And that stake has been co-opted by the people on the jury who believe that if they have not experienced something, it has not happened.

Yes, I am sworn to silence, and yes, I am sworn to confidentiality, but without revealing any confidential details of a scenario that plays out every day across this country, these attitudes and actions must be condemned, for by their actions they condemn others to violence and the ongoing threat of violence.

Back to the jury deliberations. They vote until they all agree that the man did not know he was making a threat. To be more accurate, they all, in the end, agree that there is a reasonable doubt that the man did not “knowingly” make a threat. Because this silly, subjective, dating woman was unreasonable in feeling scared – as judged from the dominant male gender position. The women members of the jury have also been told throughout deliberations that they are subjective and not reasonable, so over the course of two days, they eventually bow down and accept the male gender position, and agree to judge the victim of the threat as unreasonable. So does the one (non-white) male holdout who starts by voting guilty and in the end switches to not guilty. He says he would be scared, until he is convinced that he shouldn’t be.  And that by extension, the crime victim shouldn’t be.

So in the end, because the crime victim, this dating woman, is judged as not being as reasonable and objective as the dominant men on the jury, the man who threatened her “couldn’t have known she would take him seriously” so is not going to be punished for it. In the end, using the dominant formula, they all vote “not guilty”. The perpetrator is going to walk, and guess whether the woman will call the police next time this kind of this happens?

After the jurymembers agreed on a verdict, some of them start relax and kick back and judge the woman further. “Hey, now that we are done (being so objective and fair) I gotta wonder, why was she wearing such a short dress?! Hello! Doesn’t she KNOW how to dress for court?” “Haha! Maybe she was dressing for a date, haha!” It goes on, while a few people sit in silence, in our lovely liberal city, where no one cares how you dress and we treat everyone equally, and we are so non-sexist, respectful, and caring.  So multicultural!

“And I just have to ask,” the jury chair says at the end, “Why do girls FALL for that?! I just don’t get it!” Another man points out that it is not “just girls” but any person could have this sort of thing happen. But no, not the head of the jury! It could never happen to him! As he puts it, “if somebody told me I’m gonna cut your left hand off, I’d be like, yeah, you and what army!” He closes by saying he knows “a bunch of girls this has happened to,” and it just kinda makes him mad that they fall for it! The suggestion, of course, being that these women just aren’t being reasonable.  He doesn’t seem to have any problem with the perpetrator’s acts, just the victim’s apparent weakness.

The bailiff comes in and we are led back into the courtroom, to mete out justice and reinforce the legal and social rule of the society that we all have to live in – together.

I do not claim that men in general are assholes, or inherently dismissive of domestic violence on its face. The fact that I feel the need to add this disclaimer is only more proof of how unassailable the male gender position is, especially when the criticizing voice is a womanly one. That said, and without intending to attack any individual man, or men as a gender, I do claim that our current society has things set up so that the male gender as a whole consider themselves and are considered by many others to be neutral, objective and correct. Even when they are wrong. That hurt the victim in this case, where the facts were undisputed and indisputable. And that hurts all of us.