The Law’s Unintended Consequences


We are having a bit of back-channel discussion on this proposition by Gloria Allred:

A high-profile attorney is calling for Rush Limbaugh to be prosecuted on a defamation charge, saying an obscure Florida law can be used to punish him for calling a college student a “slut” and a “prostitute” on the air.

[…]

Allred focused her efforts on Palm Beach because Limbaugh both lives and broadcasts his show from the county. She cited a state law that says, “Whoever speaks of and concerning any woman, married or unmarried, falsely and maliciously imputing to her a want of chastity, shall be guilty of a misdemeanor of the first degree.”

Sure, it’s good for a quick giggle, considering the irony of sexist laws being used to punish sexist behavior. It’s still a horrible law, however, and I’m not even talking about the free speech elements. Given that the law deals only with false speech with an intent to injure, we aren’t talking about protected speech, merely speech that is usually dealt with as a civil matter. But that’s not what I’m talking about.

I’m talking about having one more law on the books where the defense consists of tearing the victimized party’s life apart. Proving beyond a reasonable doubt that one is falsely accused of “want of chastity” means proving chastity beyond a reasonable doubt. One only need look at a rape trial, where chastity isn’t even relevant to the question of consent, to see how well that goes.

Actually, it isn’t even that the law is bad in that respect if one is using civilized definitions of “chastity,” or even just the definition suggested by the fact that the law applies to married women. In this case, celibacy isn’t a reasonable definition, so we’re left with “moral or ethical sexual behavior”. Make a statement of personal ethics, get a partner or two or ex-partner or two to vouch for you, and you’re done (potential for bizarre courtroom drama notwithstanding).

Except that while the law is behaving itself just fine in this respect, the justice system in which the law is being applied is still a sexist and puritanical institution. That means that the law will be used to hurt those it was intended to protect. We see that in cases where victims of domestic violence are jailed when they refuse to testify.

We’re seeing it now too, in women who are being charged with murder after miscarriages and stillbirths because they supposedly harmed their fetuses.

Gibbs became pregnant aged 15, but lost the baby in December 2006 in a stillbirth when she was 36 weeks into the pregnancy. When prosecutors discovered that she had a cocaine habit – though there is no evidence that drug abuse had anything to do with the baby’s death – they charged her with the “depraved-heart murder” of her child, which carries a mandatory life sentence.

Gibbs is the first woman in Mississippi to be charged with murder relating to the loss of her unborn baby. But her case is by no means isolated. Across the US more and more prosecutions are being brought that seek to turn pregnant women into criminals.

“Women are being stripped of their constitutional personhood and subjected to truly cruel laws,” said Lynn Paltrow of the campaign National Advocates for Pregnant Women (NAPW). “It’s turning pregnant women into a different class of person and removing them of their rights.”

It’s possible to charge these women at all because of laws turning assaults that result in loss of a pregnancy into murder laws. The laws are meant to protect pregnant women from domestic assault or to bring some “justice” (i.e., retribution) to those families whose hopes for a baby are dashed by reckless or drunk driver. Every time I hear of someone being charged under those circumstances, however, I cringe.

What the laws are actually doing is providing legal precedent for granting personhood to a fetus, something we fight against in any other context. And however much (some of) the people who voted those laws intended them to help pregnant women, the sexist and puritanical institutions of the justice system are using those laws against pregnant women to reduce them to incubators legally liable for turning out a perfect product.

Nor is this practice special to women. The same thing happened with laws and sentencing guidelines meant to make it simpler to protect minority neighborhoods from drug dealers. The law has been applied by a racist and classist legal system to tear those neighborhoods apart, along with the lives of the people who live there.

This, more than anything, is the problem with a legal system that is designed simply to punish wrongdoers, that has that at its philosophical heart. When we make that our prime priority, we overlook how the laws we create affect those who aren’t the wrongdoers we want revenge against. We swing indiscriminately. We forget to stop and look around and see what else we will hit and who else we will hurt.

That is why we don’t give in to the impulse to prosecute Limbaugh just because there’s a law on the books that might do.

Comments

  1. psocoptera says

    I agree about criminal charges; even if it isn’t fully protected speech, it is still a civil court issue. Does anyone know whether Rush’s statements would be considered slander? I am not saying Ms. Fluke should, but I am kind of curious.

  2. F says

    psocoptera

    I’d call it slander, because the statements weren’t delivered as opinion or epithets. They were delivered as facts, and not just speculation, either.