Statutory Rape and Further Punishment of Victims

Two cases of statutory rape have made headlines recently.  Such cases are problematic enough on their own, but both of these stories involve further victimization of those who were already abused.

The bigger story, apparently, concerns a 10-year-old girl in Ohio who, because of the Dodds ruling and a state legislature dominated by pseudo-Christian yahoos conservatives was denied an abortion in her home state.  The Ohio “trigger law” now restricts abortions after six weeks; the girl was at six weeks and three days. 

To think that law makes any sense, you’d have to be both an absolutist about abortion and remarkably ignorant about how pregnancy works… or, one supposes, sufficiently unscrupulous to make a law effectively banning abortion altogether while pretending, presumably for political cover, not to do so.  Especially for someone so young, menstrual periods are often irregular, so it’s quite possible that this girl legitimately might not have even suspected she might be pregnant until an abortion would be illegal… not to mention that she’d likely be in denial about the entire incident.

The fact that the girl was ultimately able to secure an abortion in Indiana (where abortions may well be banned by the end of this month) is irrelevant.  Curmie has argued before that a moral/ethical argument against virtually all abortions is understandable.  But in the same way Curmie can respect both Muslims and Christians without being either, he disagrees with that absolutist position which, ultimately is based on the idea that a collection of cells is a “baby” because we said so. 

The Ohio law, incidentally, skips over all that high-falutin’ “embryo” and “fetus” terminology and declares a fertilized egg an “unborn child”; it also clings to the “fetal heartbeat” nonsense: a neat trick since their idea of a “fetal heartbeat” occurs before there is either a fetus or a heart.  There is no moral, ethical, philosophical, religious, or biological “right answer” to the central question of what constitutes a “baby.”  Curmie knows only that he deeply distrusts those who argue that their opinion is a fact, and who insist upon strictures to which everyone must abide. 

Curmie may comment later on the machinations that brought about the overturning of the Roe decision, but let’s leave those aside for the moment.  The point is that whatever you think about Roe—correct ruling, horrible ruling, good result from a bad argument—the issues are, must be, different if the woman (or girl!) involved is pregnant only as the direct result of being a crime victim.  Now, those “equal protection” arguments must resonate, and we have, even in the minds of honest absolutists, conflicting moral/ethical imperatives. 

Crime victims should be supported, not (as in this case) condemned to carry a reminder of their trauma and (unwarranted but still real) shame for another several months.  If this girl was six weeks and a couple days along in late June, and she was apparently only nine when she was impregnated, then she’d probably be starting 5^th grade (!) at about 15 or 16 weeks, and would start “showing” soon thereafter.  Girls of that age have enough to go through without that, not to mention that carrying a pregnancy to term can be extremely risky for someone so young.  

At this point, we have a clear duty to protect a victim, and a pregnant 10-year-old is by definition a victim.  If there’s a constitutional protection for criminals against cruel and unusual punishment, there damned sure ought to be one for people abused by those criminals.  As far as Curmie is concerned, this overrides any argument based on an opinion about when human life begins. 

Of course, there followed the (inevitable?) argument that the whole story is, or at least could be, made up by “an abortion activist” (a.k.a. an obstetrician-gynecologist).  The Indianapolis Star wouldn’t comment on whether they’d confirmed Bernard’s story, so the reactionary conspiracy theorists were in full flower in double-quick time.  Right-wing PJ Media hack Megan Fox led the pack with a series of what she may indeed be stupid and/or doctrinaire enough to believe are actual indictments of the story.  Naturally, she accuses Bernard of playing to the media instead of caring about the child.  

Dr. Bernard

It might be worth mentioning a couple of facts in this regard.  Fox tweeted, “#DrCaitlynBernard got a call from another doctor asking for help for a horribly abused child and her first instinct was to call the media.”  

Bernard said she received the call from an Ohio colleague three days after the Dodds decision: so, June 27.  But the story doesn’t come out until four days later, on July 1.  A paper is going to wait four days to cover a story this potentially explosive?  It sure seems to Curmie that maybe contacting the media wasn’t, in fact, the first thing Dr. Bernard did.

Fox also expresses concern that the police weren’t involved.  Of course, the crime had already been reported to Franklin County Children’s Services on June 22, five days before the Dodds ruling was handed down, eight days before the girl’s pregnancy was aborted, and nine days before the news story was first published.  That office then alerted the police, who, for reasons of their own (not to tip their hand to the rapist that they were closing in, perhaps?), did not respond to questions about their involvement in the case.

It is true that the story as reported does indeed lack “the name of the referring doctor, any of the towns involved, whether charges were brought against the child’s alleged rapist and whether Bernard or the referring doctor contacted the authorities regarding the child rape.”  As it should.  If it’s standard procedure to protect the privacy of adult rape victims, it damned well better be for girls, and none of these protections seem inappropriate. 

Could the story have been completely fabricated?  Sure.  So could stories about, oh, I dunno, teachers cramming CRT down the throats of third-graders.  The difference between these two examples is that the doctor’s story is plausible.  Even if it had been a complete fiction, it describes events that could reasonably stem from an absurd legislative action. 

Of course, as Curmie initially suspected, it now appears that a suspect was indeed arrested for felony rape of a 10-year-old Ohio girl… and confessed!  Right-to-lifers still won’t let it go: the fact that the story is true (or at least that there was indeed a 10-year-old victim in Ohio) is regarded as “pure moral luck,” and the real bad guys aren’t the rapist or the misogynistic legislators, but the rather those awful people who reported a true story as if it had been based in fact.  There was even an argument that we don’t know if the 10-year-old victim whose alleged rapist was arrested is the same girl Dr. Bernard was describing… as if that matters even a little in terms of the larger story.

But if Curmie thinks this case is troubling, the news out of Louisiana might just be worse.  Just read the headline: “A Louisiana woman was ordered to pay her accused rapist child support after sheriff ‘dropped the ball.’”  Yes, Gentle Reader, you read that correctly.  A more colossal fuck-up in the legal/judicial system would be difficult to imagine.

Crysta Abelseth at age 32

Here are the details, such as we have.  In late 2005, a 16-year-old girl named Crysta Abelseth met 30-year-old John Barnes in a bar in Hammond, LA.  Barnes reportedly said he’d drive her home, but instead took her to his house, where they had sex.  She says he raped her while she was passed out; he says it was consensual.  

Legally, it doesn’t matter: the age of consent in Louisiana is 17.  It was rape, and according to Louisiana law two things are true: 1). it doesn’t matter if she lied about her age (he claims she had a fake ID, which, under the circumstances, certainly seems plausible), 2). the fact that he was more than four years older than her makes it a felony.  So his denial that he committed felony rape means precisely nothing.

The arguments of idiots like Todd Akin (remember him?  Curmie does) notwithstanding, that evening’s events led to a pregnancy.  Abelseth chose to have the child (there’s that word “choice” again!), apparently allowing friends and family to believe that she had been impregnated by a boyfriend. 

All was well until Abelseth’s daughter was five, when somehow Barnes discovered her existence.  Despite the fact that admitting the child was his would prove his guilt of a felony (!), he proceeded to demonstrate paternity and somehow was awarded shared custody; he paid $428 a month in child support beginning in April 2013.  Needless to say, in a just universe, he’d have been immediately arrested rather than granted any rights whatsoever to even see his biological offspring.  But this was only the beginning of the insanity of what passes for a justice system.

In 2015, a bunch of stuff happened.  In May, Barnes sued for sole custody, claiming Abelseth had men spend the night while her daughter was present.  “Men were coming in and out of my child's life…. She had three husbands in six years and it wasn't healthy.” 

A few weeks later, Abelseth reported to the police that Barnes had raped her in the traditional sense of that term.  She told a reporter for a Baton Rouge television station that the delay in making the allegation was because “I thought if I didn't do it the next day, there was nothing I could do about it… I went to a trauma counselor, and he said, ‘No, you have 30 years after you turn 18.’”  A skeptical person might well find the timing a little… erm… interesting, and to at least entertain the possibility that there was a little retaliatory gamesmanship at play, but it’s still pretty difficult to feel a lot of sympathy for a sexual felon, however much he attempts to claim the high moral ground.

Anyway, the Tangipahoa Sheriff’s Office now admits that Abelseth’s allegations were not assigned to the proper department to be investigated.  “We dropped the ball,” quoth they last month.  Uh, yeah, that would be a big “oops,” especially since it’s clear that Barnes had sex with an underage girl, whether it was “consensual” or not.  Oh, and Barnes’s company, Gumbeaux Digital Branding, listed the Ponchatoula Police as a client on their website… until that TV news story ran, after which that listing was removed.  That’s not suspicious at all, right?

Moving on in 2015: Judge Jeffrey Cashe is now assigned to the case, which seems never to end.  Six months later, which is to say in early 2016, a new joint-custody agreement actually forced Abelseth to pay child support to Barnes.  That’s right, the rapist was receiving child support payments from his victim; the amount was actually increased the following year.  A couple of brief notes here: Abelseth’s attorney should be disbarred for incompetence, and if Judge Cashe could place higher than third place in a battle of wits with a dustbuster and a toadstool, it would be revelation to Curmie.

Fast forward to earlier this year, when Barnes sued for sole custody of his daughter, amidst a flurry of claims and counter-claims between he and Abelseth.  The most damning of the accusations was that he was mentally, physically, and sexually abusing his daughter.  The strangest was that Abelseth had given the girl a cell phone in violation of an order by Cashe.  Abelseth was accused of “promoting inappropriate behavior” because the girl had done something stupid with a previous phone:  the first-ever teen-ager to do so, and all the mother’s fault, apparently.

Yes, it’s true: the timing of Abelseth’s allegations does seem suspiciously retaliatory.  But there’s a difference between distrusting a woman’s testimony and giving sole custody of a teen-aged girl to a man who is her father only because he <checks notes> committed a sexually-based felony with a teen-aged girl as the victim.

None of this mattered, apparently, as Cashe granted full custody to Barnes.  According to Abelseth, he did so without giving her a chance to defend herself or even notifying her or her lawyer of the decision.  If she’s telling the truth: wow.  If she isn’t: wow.

Then, perhaps in response to headlines that made him look like an imbecile, Cashe reversed the order, appointing a temporary third-party guardian.  There was another court day, apparently a long one, last Friday, and a decision is due this week.  If this were an actual soap opera instead of real life taking on all the trappings of one, it would be time to break out the popcorn.  Unfortunately, this is a real girl at the center of this storm, and she’s the one most likely to suffer while the adults hurl epithets at each other.

Sigh.

Independence Day Thoughts, Past and Present

Curmie hasn’t written here in almost three weeks.  Needless to say, it hasn’t been for lack of things to talk about.  SCOTUS alone would be good for at least two posts; Curmie may get to them, but he tries not to comment at any length on decisions he hasn’t read.  The Dodds ruling alone is over 200 pages, and the Carson and Kennedy decisions total another 120.  There are others, too…

There’s been a lot of other stuff, too, some of which I hope to get to, perhaps combining two or more stories into a single post.  But for now, perhaps it’s time to look at where we are in general terms.  The bad news is everywhere: the tanking stock market; soaring inflation; the Russian invasion of Ukraine; the fact that whoever the Presidential candidates in 2024 are, it’s extremely likely that Curmie will be voting for the less awful candidate instead of one he actually supports.  And then there are those SCOTUS decisions that are depressing in both their 1950s world view and their predictability.

But it’s the 4^th of July, and that takes on special meaning this year.  A lot of Curmie’s Facebook friends are declaring that this isn’t Independence Day, it’s just Monday (with a day off from work).  One friend (a man, by the way) wrote “This year’s Fourth has a different feel to it, and it isn’t good.”  Curmie hears them.  There is, perhaps, less to be happy about, let alone proud of, today than many Independence Days past.  But, glancing back at some of what I’ve written on previous July 4s, there’s a trend. 

Two years ago, the piece was titled “’... but it can be.’ A 4th of July musing,” borrowing a line from the Aaron Sorkin series “The Newsroom.”  The context is that for all its chest-thumping, the US is not, in fact, the greatest nation in the world… but it can be.  Our reality doesn’t match our aspirations, but the solution isn’t to give up: it’s to do the work necessary to raise the nation closer to what we would like it to be.  It certainly isn’t to roll over and concede.  The otherwise depressing news from Ukraine should certainly have taught us this: to quote hockey great Wayne Gretzky, “you always miss the shots you don’t take.” Standing for something involves risk; Volodymyr Zelenskyy is an international hero for a reason.  Barry Goldwater meant something altogether different in declaring that “extremism in the defense of liberty is no vice,” but those words themselves ring true: it’s just that Senator Goldwater and Curmie see “liberty” a little differently.

Four years ago, Curmie posted “Curmie Returns with a Bit of the Boss,” citing Bruce Springsteen’s song “Independence Day,” which has nothing to do with July 4, of course, but which still resonates on this day.  Especially relevant are these couple of lines: “Because there's just different people coming down here now / And they see things in different ways / And soon everything we’ve known will just be swept away.”  Disagreements about politics, for example, ought not—in most situations, at least—end friendships.  That doesn’t mean we should all “just get along.”  It does mean that unless we find some common ground on even contentious issues like gun control and abortion, society is going to unravel.  Alas, there are ideologues and authoritarians on both sides of such issues, and even recognizing the other side’s point of view as anything other than outright evil seems problematic for many.

One other early July post from years past also seems relevant.  Twelve years and two days ago, Curmie wrote “The Lessons of Easter Week, 1916,” pointing out that the Rising of 1916 in Ireland failed to achieve anything that looked like independence from England.  And yet, it did, because of English over-reaction: providing emergency medical care to James Connolly so he wouldn’t die before they could shoot him, allowing a British officer who ordered the deaths of three men almost certainly guilty of literally nothing at all to plead insanity and retire to Canada on a full pension, dumping the bodies of the executed revolutionaries in a mass, unmarked, grave and covering them with quicklime. 

The Irish people in general thought the Republicans (in the Irish sense of that term) were annoying at best… until English arrogance was allowed to show itself in full bloom.  Sinn Féin, the leading ultra-nationalist party, increased its membership in parliament from 6 members to 73 in the first election after 1916.  The more moderate Irish Parliamentary Party showed a concomitant drop, from 68 votes to 7.  Oh, and the Irish Free State came into being less than six years after the Easter Rising.

What all this means is that perhaps Michel Foucault was right: that history happens not in events themselves, but in the interstices between events.  The Dodds decision in particular was an event.  It now remains to see what history ensues.  It just might be that over-reaching claims another victim.

The current Supreme Court has shown itself to be little interested in obeying either precedent, even after promising to do so, in the case of Dodds, or in the separation of church and state in the cases of Carson and Kennedy.  As noted above, Curmie hasn’t read those decisions, and will speculate on his response only to this extent: that he’ll be considerably less than surprised should he learn that these cases were decided on the basis of political ideology rather than actual constitutional issues.

The standard line among liberals is that the system is stacked against anyone who isn’t white, male, rich, heterosexual, and Christian.  The “male” and “Christian” parts of this aphorism certainly seem to have been upheld by SCOTUS of late.  We’ll see about the others. 

It’s important to realize here that perceptions are as important as reality in some regards.  No, we shouldn’t trust emotionality over reason, but certainly recent events have served to make many people, and not just the easily persuaded, distrust the system, and that’s not a good thing.  There’s no question that we’re not going to see the protection of individual rights (other than gun-toting) from this SCOTUS, and they’re likely to be around for a while.  Short of drastic measures (which Curmie does not support), we’re not going to have the citizenry prioritized over the interests of powerful entities for a good long time.  President Eisenhower warned about the “military/industrial complex”; replace the military with reactionary Christianity and that’s pretty much where we are now.

For all this, the conflict is not over.  Curmie used to identify his political stance as “from the radical middle.”  That’s beginning to be true, again.  The party of Donald Trump and Mitch McConnell is indeed a threat to American democracy.  But so are quotas, racial set-asides, and cancel culture.  Seriously, is there anything positive to say about Biden/Harris other than perhaps, perhaps, they’re a little less mentally unstable, a little less incompetent, a little less wrong on the issues, and little less dishonest than their predecessors?  So we should just pack it in, right?

In a word: no.

Curmie is a huge fan of the University of Kansas basketball team.  They’ve won two national championships in the last 15 years.  In one championship game, the Jayhawks trailed by nine points with less than two minutes to play.  In the other, they trailed by 16 early in the game and at the half by 15.  They didn’t give up, and they were the ones raising the trophy at game’s end. 

All is not lost, today.  Curmie won’t guarantee we’ll get there—to the founders’ “more perfect union,” to MLK’s “promised land,” to the greatness of our collective vision.  But striving for less, accepting less, cannot be countenanced.  We must heed the words of James Baldwin cited in the meme above: “I love America more than any other country in the world and, exactly for this reason, I insist on the right to criticize her perpetually.”  This is the opposite of the “love it or leave it” rhetoric of the warhawks of Curmie’s youth.  Rather, this is a call to arms to fight for what is right… and despite its manifold failings, this nation has much that is positive on which to build.

246 years ago, a collection of flawed but prescient men—virtually all of whom would be regarded as both racist and sexist by today’s standards—released a document, radical for its day, that changed the world.  It was, of course, a seditious if not treasonous act, and it took more than a little courage to embark on a course that would inevitably lead to conflict with the world’s greatest military force.  On that day, those 56 privileged white men pledged not only to each other but to a fledgling nation of their own creation, their lives, their fortunes, and their sacred honor.  The current reality may not be worth this sacrifice, but the aspiration is.  We forget or ignore that at our peril.