The Rape Myth Problem Within the Judicial System

stop_rape_by_cloud_a_day_stock-d4aya5m“She asked for it.” “She didn’t say no.” “She really meant ‘yes’ when she said ‘no.’” “She looks older than her chronological age.” “She [a minor] was as much in control of the situation as the defendant [her teacher when he raped her].” “Well, you know, this wasn’t this forcible, beat-up type rape.” “Even though she was drunk, she consented and knew what she was doing.” “Well boys will be boys; what else would you expect?” “She just ‘cried’ rape.” “It didn’t happen. She’s lying ‘cause she wants revenge.” “She could have prevented it if she… had only tried hard enough… had fought back more… etc.”

What are these quotes? Where do you hear them? They are varying forms of victim-blaming and excuses for an assailant’s rape and sexual assault behaviors. These types of statements and attitudes are collectively called rape myths. Kimberly Lonsway and Louise Fitzgerald, in an article in Psychology of Women in 1994, defined rape myths as “attitudes and beliefs that are generally false but are widely and persistently held, and that serve to deny and justify male sexual aggression against women.” These myths are tied to stereotypes about how victims of rape should behave before, during, and after they have been sexually assaulted.

When these rape myths – a form of gender bias – enter the judicial system and are used in determining whether a person is guilty of sexual assault or when sentencing a convicted rapist, respect and trust in the judicial system is lost. Victims fear coming forward for fear of being re-victimized. District Attorneys become wary of prosecuting all but the most violent cases of rape for fear of further traumatizing the rape victim either because of jury or judicial bias surrounding rape. And the community loses confidence in the integrity of the judicial process.

Over the last several years, many cases of judicial system bias have become public. The most recent case was in Montana last summer when a judge – G. Todd Baugh – sentenced a rapist to 30 days in jail after he pled guilty to sexual intercourse without consent. In the sentencing, Baugh justified this minimal sentence by invoking several rape myths. People around the country and the world were outraged.

Montana NOW and Pennsylvania NOW then joined together to raise our concerns and educate the public and judiciary about this form of judicial misconduct. For the last 11 months, we worked together to have the judge officially censured and filed an amicus brief before the Montana Supreme Court to overturn the rapist’s sentence and remand the case back to a new, hopefully unbiased judge for resentencing to at least the minimum sentence for sexual assault as required by law.

In this case, we were successful in all of our efforts for judicial justice. The judge was publically censured on July 22 and will be suspended without pay on December 1. The Court overturned the minimal jail sentence on April 30 and has remanded the case back to a new judge for resentencing on September 26. The following describes the rape myth arguments we used in crafting our actions to improve the judicial system for women in Montana and hopefully with the publicity received, around the country.

What are Rape Myths?

As previously stated, rape myths are “attitudes and beliefs that are generally false but are widely and persistently held, and that serve to deny and justify male sexual aggression against women (Kimberly Lonsway and Louise Fitzgerald, 1994).” These sexist beliefs are tied to public stereotypes of what a woman and man are like and how they should behave. They blame the victim for the sexual assault, excuse the perpetrator, and/or downplay the impact of the assault.

Rape Myths in the Judicial System

The effect of the use of any form of rape myth is to shift the blame of the assault from the perpetrator to the victim. Police investigations may be flawed when they base their investigation on preconceived ideas of rape. Lawyers for defendants use these myths when questioning witnesses and defending their clients before judge and jury. Juries use their preconceived ideas and myths in determining innocence or guilt.

The degree to which rape myths invade the judicial system are dependent on how participants in the legal process feel about the rape myths apropos to the case. As stated by Sarah Ben-David and Ofra Schneider, “The more participants [in the judicial process] endorsed rape myths, the less credible…and more blameworthy…they found the [victim]…1”

Effect of Judges Using of Rape Myths from the Bench

Psychologist Jacqueline Gray at Middlesex University conducted research on the effect of judges using rape myths in their work. 2 She found that when rape myths are voiced by the presiding judge, the likelihood increases of either finding the defendant not guilty or that a lighter sentence is handed down if the person either pleads or is found guilty.

This “voicing” can be heard either in questions the judges asks of the jury pool, rulings made from the bench, instructions given to the jury before deliberation, or in the sentencing of the convicted rapist. When used, particularly by a presiding judge, these rape myths result in a chilling effect on other victims of sexual assault. It also places a chilling effect on the public and others within the judicial system. If weare unable to trust and rely on the justice system to properly weigh the relevant factors in addressing sexual assaults, we all lose confidence in the integrity of the judicial process.

A Specific Example of One Judge Using Rape Myths and What NOW Did as a Result of this Misconduct

In the case of Rambold v. Montana, a male teacher was found guilty of sexual assault. In this case, Stacey Rambold pled guilty to one count of sexual contact without consent with one of his 14-year old students. At the sentencing hearing, the presiding judge, G. Todd Baugh handed down a 31-day jail sentence to Rambold. Montana’s sentencing guidelines required a minimum two years in prison. He explained his decision through a series of victim blaming and making excuses for the rapist’s behavior.

This is the case that Montana NOW and Pennsylvania NOW intervened in to advocate the censuring and removal of the judge from the bench for his ethical violations of the Judicial Code of Conduct.

His Quotes

The statements Baugh made both on the bench and to the press in an attempt to justify giving Stacey Rambold actions included:
1.“She [a 14-year old Hispanic girl] was as much in control of the situation as the defendant [Rambold, her white high-school teacher].”3

2.“She looked older than her chronological age.”4

3.“Well, you know, this wasn’t this forcible, beat-up type rape.”

Types of Rape Myths He Used

These three statements encompass three different types of rape myths or behaviors to minimize or justify the actions of the rapists. They include blaming the victim for the rape, implied consent when the rape is not violent, and the “Lolita Effect.”

Blaming the Victim

Blaming the victim involves a laser focus on the actions of the victim of the rape. These are false beliefs about rape that shift the blame from the rapist to the victim. They are commonly held beliefs that if only the victim had done something different or hadn’t provoked the situation, she wouldn’t have been assaulted. One of the most common myths is that by her behavior, her dress or by her looks, she “asked” for “it.” In this case, saying that the girl was “as much in control” and “looking older than her chronological age,” Baugh bought into the victim blaming that rape shield laws are supposed to prevent.(5)

Implied Consent

A second common myth is that the rape has to involve physical violence as well as non-consent in order to be considered to be rape. This myth is rooted in the idea that when someone doesn’t show externally visible physical injury, consent is implied. This myth belies the fact that all forms of rape are an act of violence whether or not someone’s bones are broken or her body is bruised; psychological damage is long lasting and very common among victims of rape.(6) In this case Baugh invoked this myth of implied consent when he said that the rape wasn’t this “forcible beat-up type rape.”

Lolita Effect and Power Dynamics

The Lolita Effect focuses on young girls. It stems from a view that girls are somehow predatory and have power over boys and older men when it comes to sexuality either due to their sexual appearance or supposed sexual experience. According to Dr. Meenaski (Gigi) Duraham(7), there are five myths involved in creating this “Lolita Effect” that are used in the media and pervade our culture. These myths include:

-girls don’t choose boys, boys choose girls—but only the sexy ones
-there’s only one kind of beauty—slender, curvy, white beauty
-girls should work to be that type
-the younger a girl is, the sexier she is
-sexual violence can be hot

In an effort to combat this set of beliefs, most states have created statutory rape laws (known as sexual intercourse without consent) to help protect young girls from rape and sexual assault particularly in cases involving others with power over the girl (such as a teacher).

When Baugh made these three statements, he invoked this set of myths by giving more power and control over the assault to the victim and denying the power that a teacher has over his students.

In our Amicus brief(8) asking the court to overturn the minimal sentence handed down by Baugh onto Rambold, we discussed the impact of the Lolita Effect on the court system:

There is a persistent “Lolita” myth stemming from a bias against girls who are viewed as somehow predatory due to their prior sexual experience or sexualized appearance. Immortalized by Vladimir Nabokov’s tale of Humbert’s “relationship” with his step-daughter, Lolita, the myth is but a fiction….

There has been some debate, in part based on the Lolita effect, that statutory rape is anachronistic in today’s hyper-sexualized culture and that the crime of rape should be based on proof of meaningful consent without regard to a victim’s age. But statutory rape laws are meant to protect children, not only because of their incapacity to comprehend and respond to sexual stimuli in a way that would constitute legal consent, but also because of the inherent power disparity and resulting coercion which accompanies almost any interaction between an adult in a position of power and a child that is in that person’s care.

Power disparity, such as that between a teacher and student, makes the child vulnerable to sexual coercion and decreases the likelihood that the child’s seemingly voluntary sexual activity is truly consensual.(9) When a child engages in sexual contact with a partner who holds physical or emotional power over the child, that child has been exploited and victimized. This power disparity becomes even greater in an adolescent that suffers from the common childhood affliction of low self-esteem.

What Judicial Canons He Violated

Like every state and the federal judiciary, Montana created a document known as a Code of Judicial Conduct.(10) It lays out a series of “canons” or rules on the proper conduct of a judge. It establishes standards for the ethical conduct of judges (and judicial candidates) to help insure an” independent, fair, and impartial judiciary.” These canons also call upon judges to “maintain the dignity of [the] judicial office at all time, and avoid both impropriety and the appearance of impropriety in their professional and personal lives.

When a judge violates these canons, they can be sanctioned for their actions. When Baugh sentenced Rambold to just 31 days in jail, despite the minimum two year sentence mandated by law and then minimized the actions of Rambold, he violated according to the Montana Supreme Court one of the canons and in NOW’s opinion, violated two more.
The one canon that both the Montana Judicial Standards Commission and the Montana Supreme Court said he violated was Canon 1.2:

That Baugh did NOT act at all times in a manner that promoted public confidence in the independence, integrity, and impartiality of the judiciary, and that he did not avoid impropriety and the appearance of impropriety (Rule 1.2);

This was the violation for which Baugh was publicly censured on July 22 and for which he will be suspended from the bench without pay on December 1 for 31 days. On December 31, he will permanently retire and will no longer be able to oversee any future court cases.

The other two canons that NOW cited when we filed a complaint against Baugh with the Judicial Standards Commission were:

That Baugh did NOT uphold and apply the law, nor did he perform all duties of his judicial office fairly and impartially (Rule 2.2); and

That Baugh, in the performance of [his] judicial duties, by his words as well as his conduct, [he] showed manifest bias or prejudice against the victim based upon [her] race, sex, gender, age, and socioeconomic status (Rule 2.3).

How NOW Reacted and the Outcomes

Over the past year, Montana NOW and Pennsylvania NOW joined in the outrage shown around the country on the actions and use of rape myths by this so-called “impartial” judge.
In August 2013, Montana NOW along with several other community members organized a rally in front of the courthouse in Billings, MT to express community outrage at the light sentence given to Rambold by Baugh.

Following that, in late August and early September 2013, Montana NOW, soon joined by Pennsylvania NOW, worked with We are Ultraviolet Education Fund to gather signatures(11) calling for the Montana Judicial Standards Commission to remove Baugh from the bench.

On September 24, 2013, we filed(12) our formal complaint(13) with the Montana Judicial Standards Commission. In the complaint, we presented the background of the case, a summary of Baugh’s misconduct, cited the portions of the judicial rules of conduct that he violated (see above), and cited the thousands of witnesses who wrote or petitioned for Baugh’s removal.  These witnesses include more than 250,000 people around the world who called for either a resignation or removal of Judge Baugh (see here, here, here, and here for the wordings of the four on-line petitions), media reports from two prominent journalists (here and here), and 350 sexual assault survivors who signed a letter calling for the removal of Judge Baugh.  The complaint was delivered to the Commission with copies of the signatures of the petition signers, the letter from the sexual assault survivors, and links to the two news articles condemning Judge Baugh’s actions.

Baugh responded to our complaint on November 13, 2013.  The Commission sent us a copy of his response on November 19, 2013.  They gave us twenty days to review and advise the Commission on the factual accuracy of Judge Baugh’s response. Our response(14) was faxed to the Commission on Saturday morning, December 7, 2013.

In his response to our Complaint (and in the press), Baugh acknowledged that he violated Rule 1.2 but denied any violation of Rule 2.2 or 2.3. We reviewed his complaint and saw additional comments of continued disregard for the performance of his duties and bias in sexual assault cases. In addition, we included supporting information as to what other judges throughout the country have said in relation to adjudicating and sentencing in sexual assault cases in general.  We believe that this supporting commentary from fellow judges backed up our concerns about the mishandling of this case.

After we filed our complaint in September, NOW decided to go a step further. Knowing that the Montana Attorney General’s office intended to appeal the minimal sentence and ask the Montana Supreme Court to overturn the sentence and return the case back to the district court for resentencing, we decided to start work on an amicus brief. Over the next three months we worked on this next step.

Knowing that it is possible for advocacy groups to file “friend of the court” amicus curiae briefs, we contacted two members of our network of women’s legal advocacy organizations—The Women’s Law Project and Legal Momentum—to see if there was any interest in pursuing this amicus.  They put us in contact with Legal Voice and the Sexual Violence Law Center. Both of these organizations are based in Seattle, Washington and serve women in Montana.  As a result, all six organizations agreed to file an amicus. Attorney Vanessa Soriano Power and other members of the law firm Stoel Rives LLP took the lead in writing our brief and petitioning the Court to add our brief to their review of this case.

On December 6, 2013, the Montana Attorney General’s office filed an appeal before the Montana Supreme Court. They asked the court to remand the case back to the Yellowstone County District Court for resentencing that would follow the state law’s mandatory minimum sentencing guidelines.

On December 13, 2013, NOW and the four women’s legal advocacy organizations filed our amicus brief(15) with the Supreme Court – something that the Montana Supreme Court rarely allows. The amicus brief we filed focused on the rape myths described in this article and their inappropriate impact such use of these myths have in adjudicating and sentencing in sexual-assault cases.  We asked the court to take the effect of these types of myths into account when making their decision in this case and, upon remand, to assign the case to a new judge for resentencing.

Then we waited. Rather than hold an appellate hearing on the rape sentence, the Court decided to review the case completely by written correspondence. There were several responses back and forth between Baugh, Stacey Rambold’s lawyer Jay Lansing, and the Montana Supreme Court.

On April 30, 2014, the Montana Supreme Court handed down their decision(16) on the original sentencing of Stacey Rambold. The Court listened to the arguments presented by both the Attorney General’s office and by NOW. They overturned (“vacated”) the 30-day sentence and remanded the case back to the Yellowstone County Courts for re-sentencing in line with the minimum mandatory sentencing guidelines. In addition, they have ordered the county to assign the case to another judge for Rambold’s re-sentencing.

The last two paragraphs of the opinion indicate that the Court heavily relied on our amicus in ordering the remand:

¶21 On remand for resentencing, we further instruct the court to reassign the case to a different judge to impose sentence. We have considered several factors to decide whether a new judge should be assigned to resentence a defendant in a particular case, among them; whether the original judge would reasonably be expected to have substantial difficulty in putting out of his or her mind previously-expressed views determined to be erroneous, whether reassignment is advisable to preserve the appearance of justice, and whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness. Coleman v. Risley, 203 Mont. 237, 249, 663 P.2d 1154 (1983) 10 (citations omitted). In State v. Smith, 261 Mont. 419, 445-46, 863 P.2d 1000, 1016-17 (1993), we remanded for resentencing to a new judge when the judge’s statement at trial evidenced bias against the defendant. Even where bias did not require reassignment to a new judge, we have reassigned where media coverage and public outrage “have snowballed to create an appearance of impropriety.” Washington v. Montana Mining Properties, 243 Mont. 509, 516, 795 P.2d 460, 464 (1990).

¶22 In the present case, Judge Baugh’s statements reflected an improper basis for his decision and cast serious doubt on the appearance of justice. The idea that C.M. could have “control” of the situation is directly at odds with the law, which holds that a youth is incapable of consent and, therefore, lacks any control over the situation whatsoever. That statement also disregards the serious power disparity that exists between an adult teacher and his minor pupil. In addition, there is no basis in the law for the court’s distinction between the victim’s “chronological age” and the court’s perception of her maturity. Judge Baugh’s comments have given rise to several complaints before the Judicial Standards Commission, which has recommended disciplinary action by this Court. Those complaints will be addressed in a separate proceeding. Under these circumstances, we conclude that reassignment to a new judge is necessary to preserve the appearance of fairness and justice in this matter.

After this decision was handed down, all of the other judges in Yellowstone County recused themselves from the resentencing hearing. Stacey Rambold is now scheduled to be resentenced on Friday, September 26, 2014.

We also won our complaint against Baugh. Note that in the last paragraph of the Rambold v Montana appellate decision quoted above, the Montana Supreme Court states, “Judge Baugh’s comments have given rise to several complaints before the Judicial Standards Commission, which has recommended disciplinary action by this Court. Those complaints will be addressed in a separate proceeding.

That “separate proceeding” occurred on July 22, 2014 in the Montana Supreme Court. That day, representatives of Montana NOW and Pennsylvania NOW were present to observe the public censure of G. Todd Baugh. Our statement of public censure was sent to Baugh, given to the press and is available on this website. In part, here’s what we said:

Mr. Baugh, your victim-blaming, rape-trivializing, rapist-protecting comments and actions come less than a year after the United States Department of Justice was called in to address civil rights violations and rape victim-blaming by the University of Montana, Missoula County and Missoula City authorities over many years.

You used three different rape myths to justify your actions. By doing so, you used a form of gender bias that destroyed the integrity of the judicial process and contravened Montana law. Rape myths are forms of gender bias that have no place in a justice system that strives to provide an impartial forum for all participants.  As the Honorable Justice Sandra Day O’Connor said in 1994, “When people perceive gender bias in a legal system, whether they suffer from it or not, they lose respect for that system, as well as for the law.”

What did you do? You blamed the victim for the rape. You invoked the belief that this wasn’t “real” rape because it did not involve physical violence. And you invoked the myth of girl provocateur, also known as the Lolita Effect, to deny the power and control a teacher has over his student.

You relied on these rape myths to impose your sentence against Rambold. You trivialized the act of rape by stating that the crime was not a “forcible, beat-up rape.” By doing so you downplayed the fact that a teacher took advantage of and sexually assaulted a girl under his power and control. You blamed the victim by claiming she had control over the rape….


Rape myths have no place in the judicial system. Not for law enforcement. Not for lawyers. Not for juries. And definitely not for judges. The final paragraph of NOW’s statement of censure of Baugh says why:

[When those within the judicial system use these types of myths about rape, the] use of these rape myths [diminish] and make invisible [in this particular case] a young vulnerable girl. [These types of] statements result in a chilling effect on other victims of sexual assault. It also places a chilling effect on the public and others within the judicial system. If we are unable to trust and rely on the justice system to properly weigh the relevant factors in addressing sexual assaults, we all lose confidence in the integrity of the judicial process.

Finally, it is important that we all do our part to make sure that using rape myths in dealing with rape and sexual assaults within the judicial system doesn’t happen again here or anywhere else in the country. So make sure judges know we are watching and will take action if needed.

– by Joanne Tosti-Vasey, President Emeritus, Pennsylvania NOW Education Fund

1  Sarah Ben-David and Ofra Schneider. “Rape Perceptions, Gender Roles Attitudes, and Victim-Perpetrator Acquaintance.” 53 SEX ROLES 385, 399 (Sept. 2005).

2 Jacqueline M. Gray, “Rape myth beliefs and prejudiced instructions: Effects on decisions of guilt in a case of date rape.” 11 LEGAL AND CRIMINOLOGICAL PSYCHOLOGY 75-80 (2006).

3  “Former High School teacher gets 30 days for rape of student.” BILLINGS GAZETTE (August 26, 2013). Retrieved August 7, 2014.

4 Ibid.

5  An appellate case in 1995 in California criticized another judge for making similar allegations. In that case, the trial judge faulted the victim for not resisting attacker and suggested that the victim sought and welcomed the attacker’s attention Catchpole v. Brannon, 42 Cal. Rptr. 2d 440 (Cal. Ct. App. 1995).

6 Lynn Hecht Schafran, Maiming the Soul: Judges, Sentencing and the Myth of the Nonviolent Rapist, 2 Fordham Urban Law Journal 131-136 (1992)

7 Retrieved August 13, 2014

8 Retrieved August 13, 2014

9  See Jacqueline E. Darroch, et al., Age Differences Between Sexual Partners in the United States, 31 Fam. Plan. Persp. 160, 163 (1999).

10–%20Order?id={7F2426C5-4E87-4C48-AE15-3E8E997CF8FC}. Retrieved August 13, 2014.

11 Retrieved August 13, 2014.

12 Retrieved August 13, 2014

13,%202013%20by%20Montana%20NOW%20and%20Pennsylvania%20NOW. Retrieved August 13, 2014 Document also here.

14 Retrieved August 13, 2014. Document also here.

15 Retrieved August 13, 2014 Document also here.

16 Retrieved August 13, 2014