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Citation: 36 Buff. L. Rev. 237 1987

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The Public-Private Distinction
in American Law and Life


N OTHING is more central to our experience in American culture than
the split between public and private.’ It is the premise which lies at

the foundation of American legal thought, and it shapes the way in
which we relate to each other in our daily lives. We consistently take for
granted that there is both a public realm and a private realm. In the
private realm we assume that we operate within a protected sphere of
autonomy, free to make self-willed individual choices and to feel secure
against the encroachment of others. Private law, for example contract
law, serves as a helpmate in this realm, facilitating and securing the au-
tonomous world of private decision-making. In contrast, the public realm
is a world of government institutions, obliged to serve the public interest
rather than private aims. For the most part the public realm is accounta-
ble to the private and obligated to limit its intrusion into the world of
private choice. Occasionally, however, it is supposed to override the pri-
vate sphere, either to serve a greater public good or to solve problems
that are poorly handled by private decision-making.

* Professors of Law, Faculty of Law and Jurisprudence, State University of New York at Buf-
falo. Earlier versions of this essay were presented at the City University of New York School of Law
in April 1986, at the Cornell University School of Law in November 1986, at the University of
Toronto Law School in October 1987, at Yale Law School in March, 1988, and at Osgoode Hall Law
School in April 1988. The authors are grateful to Sara Nichols for her thoughtful and helpful
efforts. An earlier version of this Article appeared in TiEKUN, Vol. 3, No. 2, at 24 (1988).

1. That our discussion is about a peculiarly American version of public-private was emphasized
to us by David Fraser, from his Canadian perspective. It is not his position that Canadians do not
draw the public-private line. They simply draw it in a different place. But where they draw it indi-
cates a qualitatively different ideological structure, one in which the public is experienced more
directly by people. It is also experienced more frequently. While in many, if not most instances, this
experience is little more than welfare statism, the room for an alternative, more political-communi-
tarian experience is there, and is lived. For a fuller account of his position, see Fraser, And Now for
Something Completely Different: Judging Interpretation and the Canadian Charter of Rights and
Freedoms, 7 WINDSOR YEARBOOK OF AccEss TO JUSTICE (1988) (in press).

Jane Smith, a former student, reminded us that one’s experience of public-private in American
culture may well differ according to one’s situation with respect to race, gender, or class. For further
discussion of this issue, see R. SENNETT & J. COBB, THE HIDDEN INJURIES OF CLASS (1972);
Merry, Concepts of Law and Justice Among Working-Class Americans: Ideology as Culture, 9 LEGAL
STUD. F. 59 (1985).

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It is important to recognize the role of the private-public split in
legal thought, but its real significance lies in the powerful way it informs
our daily experience of the world. It is part of our lived reality to know
that the public realm is different from the private, that they both exist,
but are separate from each other, with different things happening in each
one. That knowledge, in turn, molds our relationships even to our closest
friends. We were reminded of that fact recently, during a phone conver-
sation with a good friend. We had just produced a new baby, a fourth son
in our busy household, and our friend said she hoped we would now stop
reproducing. Then she quickly retreated into an apology, afraid that she
had offended us. At first her fear seemed puzzling, but then it made
sense. In our culture one is not supposed to tell people what one thinks of
their reproductive behavior. Family planning choices take place in the
world of family privacy, which is a world of private, autonomous deci-
sion-making. Even friends are expected not to intrude into that protected
sphere with inappropriate comments about the adequacy of one’s birth
control. To do so is to violate the norms of privacy. Our friend’s apolo-
getic manner is what we mean by taking the public-private split for
granted as part of our daily experience.

A few moments of reflection, however, show the extent to which
that supposed realm of privacy is a product of cultural contingency, not
objective reality. For example, since reproduction is the process by which
a society reconstitutes itself, many cultures consider family planning an
obvious matter of social concern and choose either to encourage or dis-
courage large families. Even where matters of sexuality and reproduction
are ostensibly understood as private, their experience is a socially consti-
tuted one. Unless one is prepared not only to head for the wilderness, but
also to discard all previously acquired cultural baggage, the notion of
raising children in pure privacy is an impossibility. We look, often franti-
cally, to social experience for guidance and understanding of the parental
role. The fact that we run to look up problems in Dr. Spock is more than
just a metaphor for the social dimension of the experience. The private-
ness of reproduction is part of our consciousness, not a natural reality.

Once the public-private split is recognized to be merely an artificial
construct, new possibilities for human contact are born. Erecting fantasy
walls of privacy around each other causes the denial of access. Privacy
means alienation. If some of those walls were dissolved and traditionally
private questions were transformed into community concerns, then some
of our experience of personal separation might turn into an experience of

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connection. Because our sense of ourselves and others would change, our
world would be altered.

Instead of seeking alternative connections through transformation
of the public realm into one of authentic community, many of us seek
authentic experience by retreating or escaping into the most private
realms. In effect, we create a subset of the private in which real mutuality
serves as an antidote to the alienated world of competitive, possessive
individualism. Thus the family is experienced as the “haven in a heartless
world.” 2 Similarly, many of us try to find true meaning through religious
experiences and the social life that accompanies them.3 Or, alternatively,
many of us think we achieve real interpersonal connection in the most
private realm of all, when we fall in love.4 Yet the relegation of those
experiences to the supposed realm of pure privacy serves always to limit
their significance. Because they are private they are contained, trivialized
and rendered irrelevant to the real world, where love has no place.

Nevertheless, because our present world is dominated by the forms
of liberal legalism,5 which defines us as bearers of private rights, the rhet-
oric of militant privatism has provided an important weapon in specific
contexts. In the abortion area, for example, gaining the right to private,
autonomous, reproductive choice has seemed an important feminist vic-
tory. Yet the language of privatism is a double-edged sword. As women
who struggle alone to raise children know, reproductive choice, con-
ceived only as a private right, serves to isolate and to negate the right to
call on the community for help and for a sharing of responsibility. To
have the private choice is also to be left alone with it. Moreover, in the
economic realm the rhetoric of privacy has traditionally been used to
transform the social reality of poverty into a believed fantasy about au-
tonomous choice, in which poverty results from individual failure. It is


3. For some different perspectives on the question, see F. FITZGERALD, CITIES ON A HILL 121-
201 (1986) (describing Jerry Falwell, his church and community); A. MORRIS, THE ORIGINS OF THE
CIVIL RIGHTS MOVEMENT (1984) (dealing with the black church and the civil rights movement);
Ferber, Religious Revival on the Left, THE NATION, July 6, 1985, at 6 (describing the relation be-
tween religion and left politics). See also B. BERGER, THE SURVIVAL OF A COUNTERCULTURE:
rural commune as a family-religion hybrid, and its relation to the outside world).

a dialectical engagement with the issue, see D. Fraser, What’s Love Got to Do With It? Critical Legal
Studies, Feminist Discourse and the Ethic of Solidarity I1 HARV. WOMEN’S L.J. 53 (1988).

5. See, e.g., Klare, Judicial Deradicalization of the Wagner Act and the Origins of Modern Legal
Consciousness, 1937-1941, 62 MINN. L. REV. 265, 270-80 (1978).


HeinOnline — 36 Buff. L. Rev. 239 1987


therefore not surprising that the formal freedom to obtain an abortion
does not mean the right to have one paid for by the community – the
poverty of the woman who cannot afford an abortion is her own private
problem. That was the lesson learned when the supposedly liberating de-
cision of Roe v. Wade6 was followed by Harris v. McRae,7 which entitled
the government to deny health benefits to cover the expenses of even
“medically necessary” abortions.

Thus, within liberal legalism, privacy may be a weapon for gaining
freedom from others in the short run, but it may also provide justification
for abandonment by others in the long run. This short-run, long-run
problem can best be understood against a more general theoretical back-
drop. For the purpose of understanding the consciousness of private
right, nothing has really improved upon Marx’s classic account, On the
Jewish Question.8 The essay remains the fullest account of liberal ideol-
ogy understood at the core level of experience. Despite the essay’s heavy,
dated Hegelian terminology (state and civil society rather than simply
public and private, for example), it still remains the fullest account of
liberal ideology.

Marx begins by describing the emancipation of the political state
from the various status qualifications which once constituted it. Under
the old feudal, hierarchical model, political life was inseparable from gra-
dations of social privilege based on religious, economic and class back-
ground. Political status was bound up with social status, so that religious
and property qualifications were attached to the right to vote. In con-
trast, in the new liberal state, citizenship was freed of those qualifications.
As a citizen, the Jew was as free as the Christian, and the poor person
was on an equal footing with the landed aristocrat. Thus, the state be-
came the arena for the exercise of free political participation and the real-
ization of true community. In that sphere, at least, alienating divisions of
religion and class were dissolved. That liberation of the state was a “great
step forward,” a step away from separateness and toward community, or,

6. 410 U.S. 113 (1973).
7. 448 U.S. 297 (1980).

GINS, GROWTH, AND DISSOLUTION 122-27 (1981) (further discussion of the public-private distinc-

For a critique suggesting that both Marx and Marxism all too easily replicated the public-private
dichotomy as systematic oppression and domination of women by men, see A. GOULDNER, THE
OGY 101-04 (1976).

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using Marx’s term, “species being.” 9

Nevertheless, the emancipation of the state is not complete human
emancipation because the old distinctions are in fact retained outside the
state, in the form of private rights. Religion, rather than being abolished,
becomes a private whim, an expression of purely subjective, individual-
ized values. Similarly, while property is removed, as a precondition of
formal political participation, it is nevertheless retained as a protected
right, with which the state cannot interfere. Property as private right,
stripped of the old notions of moral-political obligation (of, e.g., the feu-
dal lords to their serfs) both presupposes and legitimates a realm of ego-
ism, self-interest and atomization. Thus, in the private sphere there is
only “bellum omnium contra omnes,” 10 as Marx says, “no longer the
essence of community but the essence of division.”‘1

Marx emphasizes the fact that he is describing concrete changes that
took place with the emergence of liberalism, but he is also describing a
change in consciousness, a change in the way that we experience the
world. The split between public and private lies at the heart of that new
liberal consciousness, for it means that we simultaneously view others as
both fellow citizens in a true community and as separate, antagonistic,
private others. Thus, as Marx says, “man leads a double life …. In the
political community he regards himself as a communal being; but in civil
society he is active as a private individual, treats other men as means…
and becomes the plaything of alien powers.”‘ 2

Moreover, because the most important daily activities-work, fam-
ily life, moral choice-are all experienced as private and apolitical, the
experience of community becomes increasingly abstract, realized at the
level of fantasy and ritual rather than as a concrete reality. Most citizens
have little direct experience of participation in collective decision mak-
ing, so the citizen becomes “an imaginary member of an imagined sover-
eignty” with no direct control over the concrete facts of social life.13 The
state itself also becomes an abstract alien, rather than an arena for the
experience of a community.

Notably, the public-private split also replicates itself within the
realm of the private, most starkly in the market-family dichotomy. 4 In

9. K. MARX, supra note 8, at 226-28, 241.
10. Id. at 227.
11. Id. (emphasis in original).
12. Id. at 225 (emphasis in original).
13. Id. at 226.
14. For this section we are indebted to Fran Olsen for her thorough and sensitive treatment of


HeinOnline — 36 Buff. L. Rev. 241 1987


theory, the market offers a free range for atomized, competitive self-inter-
est, while in contrast the family gives expression to the yearning for
warmth, selflessness and interconnectedness. Thus conceived, that di-
chotomy in turn represents the conventional, stereotypical split between
male and female roles. In the market, the most public and powerful of
the private realms, men can play out their maleness by being aggressive
and dominating others with their superior skill and economic advantage,
while, contained within the family sphere, women play out their female
roles by providing a safe, nurturing home. Therefore, the traditional ri-
gidity of gender identification is inextricably linked to the supposed
boundary between market and family, which in turn is an integral subset
of the basic liberal split between public and private.

A crucial ingredient in liberal ideology, as described by Marx, is the
fact that the public-private split actually entails a tripartite structure of
self, state and other. Because of that structure there is always an alienat-
ing third which mediates the relationship between self and other.I5 Other
private individuals are experienced, not in direct relationship, but rather
by reference to a state that will set the ground rules of the relationship
and determine the extent of each person’s rights and duties. In every
relationship the state is a potential ally and a potential foe to each person.
At the same time, the other as citizen in the state, as part of the collectiv-
ity, is always experienced simultaneously by reference to the world of
private right-holders. The state can never be simply the community, be-
cause the community is always composed of individuals who also define
themselves as right-holders, with private interests potentially at odds
with each other and with the collective experience. Just as each of us
leads a double life as both citizen and private right-holder, so we must
constantly experience others, not simply as people, but rather as both
members of the democratic collectivity and as atomized individuals.

There are four important notions which help to maintain that tri-
adic structure within our consciousness and make it powerful as ideol-
ogy. Those four can be termed limit, illusion, legitimation and
contradiction. They operate simultaneously at the level of legal thought
and at the level of day-to-day consciousness.

The first, the notion of limit, means there will be a line separating

the issue. See Olsen, The Family and the Market: A Study of Ideology and Legal Reform, 96 HARV.
L. REv. 1497 (1983).

15. See J. P. SARTRE, CRITIQUE OF DIALECTICAL REASON 100-09 (1982); see also F. JAMESON,

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public from private, a boundary where one ends and the other begins.
That line can be moved dramatically over time, and it can sometimes be
perceived as hard to find, or quite fuzzy around the edges, rather than as
a clear either-or boundary. Differences in where the line is drawn or how
it is perceived may be interesting and significant for some purposes, but
the key point is that the line is always felt to be present, somewhere. On
the public side of the line we assume that there is an obligation to act
responsibly, with a sense of accountability for harsh or oppressive conse-
quences to the community of others. The fact of a boundary, however,
means that at some point, accountability ends. When the line between
public and private is crossed, community concern for the outcomes pro-
duced by social life ceases because those outcomes are conceived as
merely the result of private choice.

The “state action” cases are all cases about the dual message of re-
sponsibility and limit. 6 In those cases the Supreme Court has been called
upon to interpret the provision of the fourteenth amendment of the
United States Constitution mandating that “No State shall … deny to
any person within its jurisdiction the equal protection of the laws.”17

That provision makes racial discrimination and other deprivations of
rights a matter of public concern if the entity responsible for the discrimi-
nation can be regarded in some sense as the state, i.e., public not private.
In many instances the legal line between state action and the private
realm has shifted dramatically, often in ways we want to see as

One can applaud, for example, the change in doctrine from the
1880s to the 1960s. In 1875 Congress had enacted a law barring discrimi-
nation in places of public accommodation such as hotels and theaters. 8

The theory was that Congress had been granted that power by the Civil
War amendments, especially the fourteenth amendment. In The Civil
Rights Cases, 9 however, the Supreme Court, invoking classic public-pri-
vate assumptions, announced that the statute was an unconstitutional in-
trusion into the sphere of private social life. The limit to public
accountability had been exceeded, since the fourteenth amendment only

16. Eg., Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 164 (1978) (state “authorization”); Jackson
v. Metropolitan Edison Co., 419 U.S. 345, 350 (1974) (state “regulation”); Burton v. Wilmington
Parking Authority, 365 U.S. 715, 720 (1961) (state “involvement”).

17. U.S. CONST. amend. XIV, § 1.
18. Civil Rights Act of 1875, ch. 114, §§ 1,2 (these sections were ruled unconstitutional in one

of The Civil Rights Cases, United States v. Stanley, 109 U.S. 3 (1883)). See infra note 19 and accom-
panying text.

19. 109 U.S. 3 (1883).


HeinOnline — 36 Buff. L. Rev. 243 1987


prohibits discriminatory action by the state. Not until the modem civil
rights movement, almost one hundred years later, would similar legisla-
tion again be enacted. Then, as we know, it was upheld. 0 Yet the change
in doctrinal result did nothing to undermine the basic proposition that
there was a line beyond which it was inappropriate to hold the public
accountable for racially discriminatory results. Thus, despite all of the
supposed legal advances in the area of anti-discrimination law, it is still
legitimate to treat concrete social facts like continuing high rates of un-
employment among minorities, high rates of poverty and basic exclusion
from mainstream American life as somehow outside the sphere of direct
public responsibility.”1

The notion of a limit on accountability works powerfully, not just in
setting legal limits, but also in shaping our responses to the world we see.
For example, it allows us to experience the social reality of minorities
trapped in ghettos as a fact, however regrettable, of private rather than
public life. Therefore, it is something outside the range of our direct con-
cern, something about which we do not have to feel utterly outraged. As
a result, potentially direct responses of empathy are always distorted by
the assumption that the reality being witnessed lies in a realm of privat-
ism, beyond the scope of public concern.

This is not to say, of course, that the notion of privatism is the only
distancing mechanism at work on our perceptions. The older model of
divinely ordained hierarchy, now supposedly defunct, remains in the
form of stereotypical assumptions about lower classes, women and mi-
norities. “They” are not really like “us,” they do not really mind what we
would mind, it is more natural for them to live like that. A more sophisti-
cated version of the hierarchical view, one more consistent with the pub-
lic-private split, is the notion of merit. The assumption is that there is a

20. Congress enacted the 1964 Civil Rights Act which prohibited discrimination in public ac-
commodations. Civil Rights Act of 1964, 78 Stat. 241 (codified as amended at 28 U.S.C. § 1447, 42
U.S.C. § 1971, 1975a-1975d, 2000a-2000h-6 (1982 & Supp. III 1984)). Lest precedent be too hastily
tampered with, however, the Supreme Court, in validating the law, relied not on the fourteenth
amendment, but instead on the federal power to regulate interstate commerce. See Katzenbach v.
McClung, 379 U.S. 294 (1964) (holding the 1964 Civil Rights Act applicable to Ollie’s Barbecue,
because the restaurant bought $70,000.00 of food from interstate sources).

21. Kenneth Casebeer emphasizes causation as the crucial construct in preserving the illusion of
the public-private split in recent state action cases. The relevant question has become whether dis.
crimination was caused, in some objective sense, by the actions of a state official. The effect is that
wrongs done within the permissiveness of the state, but not directly ordered or caused by officials,
are legitimated. Casebeer calls for a rejection of this image-building approach, and for a reunion of
power and responsibility which would redefine public-private and transform a notion of “public
autonomy” from oxymoron to status quo. Casebeer, Toward a Critical Jurisprudence-A First Step
by Way of the Public-Private Distinction in Constitutional Law, 37 U. MIAMI L. REV. 379 (1983).

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natural ordering of abilities, one independent of class, sex or race, which
determines outcomes in a free society. Given equality of opportunity, the
skillful, the daring and the hard working will be the ones who come out
ahead. The belief in objective merit has of course played a key role in the
ideology of the free market-success in the marketplace reflects natural
ability rather than socially constituted hierarchy.

The point here, however, is that one can reject all such assumptions
about the legitimacy of social hierarchies, yet still be unable to transcend
the distancing effect of the public-private split. In fact, we are almost
inevitably trapped by it. Even if we attempt to recognize that the
problems of others are within the scope of our own concern, we hardly
know where to begin. In the absence of true, shared communal responsi-
bility, gestures of concern are quickly turned into idle, private and proba-
bly condescending acts of charity. If we donate money to toys for tots, or
to the church soup kitchen, we are, to be sure, providing a toy for a child,
or a meal for a hungry person. However, we are also affirming the regime
of nonresponsibility that makes the act of charity one chosen by subjec-
tive whim. Given the public-private split, we are forced to be selfish as
much as we are free to be selfish, for in the absence of a real community
we are pressed back into the world of our own private lives. In the pri-
vate realm, where free choice is presumably protected, not one of us is
free to choose the rejection of privacy itself, because others will quickly
respond to such efforts as intrusive, threatening or simply crazy.

This lack of freedom to choose a community of real sharing is
closely connected to the second notion that makes the public-private split
so effective-that of illusion. The belief in a public realm allows us to feel
that despite whatever goes on in the private sphere, at least in the public
we are together as citizens, participating equally and fully. The public
realm constantly holds out the possibility of community, even while the
reality of daily life denies it. Because those daily denials are taking place,
the ideal of public community must be constantly affirmed through the
social production of imagery, lest we directly confront our loneliness and
isolation. Community must seem to be experienced, even if it is not. The
media have become especially effective purveyors of this illusion, for the
shared television viewing of national events provides the feeling that we
are all participating together in national life. Although in fact we are
only passive viewers of an image, we feel that we are joined with others,
taking part in the life of the country. The recent Miss Liberty and Consti-
tutional Bicentennial celebrations provided a ceremonial version of that
illusory experience, but so-called national tragedies have a similar effect.


HeinOnline — 36 Buff. L. Rev. 245 1987


President Reagan has been especially adept at using funerals for this pur-
pose, often masking underlying problems of corruption and ineptitude at
the same time, as with the attack on the U.S.S. Stark and the space shut-
tle explosion.22

As Reagan also seems to understand, the illusion of the public com-
munity may depend upon the periodic identification of enemies. Nothing
works quite so well as constituting a group through shared negative en-
ergy. The group hate serves neatly to buttress the illusion of togetherness.
We have seen it happen with Khomeni, with International Terrorism
and, most effectively, with Khadafy. Figures like Khadafy serve a useful
ideological purpose. However separate and private we are otherwise, at
least we can share our hatred for him as a nation- that is, as members of
a compensatory, illusory community.

Enhancing the image of public togetherness in turn facilitates the
third notion associated with the public-private split, the notion of legiti-
mation. With the illusion of togetherness intact in the public sphere of
our consciousness, in the private sphere it is acceptable to be acquisitive
and competitive, to scorn others and take advantage of their weakness.
Disparities of wealth and power that result from this social and economic
“bellum omnium contra omnes”23 are by definition legitimate because
they are a function of private, freely-willed choice, not the public exercise
of political power. To redress those disparities would be to invade the
protected sphere of private rights.

Legitimation requires an elaborate structure of law in order to main-
tain the theoretical distinction between public aid private activity. It is
the conception of legally enforceable rights which gives credence to the

22. President Reagan’s adeptness at funereal-like ceremonies in general, and in the U.S.S. Stark
episode in particular, was noted in a report of the Stark incident in a weekly news magazine.

COFFINS COMING HOME: During his years in office, Reagan has endured several foreign
policy fiascoes, especially in the Middle East, and along the way, he has become an
expert practitioner of public grief. “This president has probably met more returning bod-
ies than any president in history,” says a retired naval officer. Reagan’s complete sincer-
ity and his natural flair for poignant ceremony save him from being skewered when his
own policies lead to disaster overseas and another shipment of coffins arrives home. But
this time the questions aren’t likely to fade away. “We all want to know why did this
have to happen,” said Ernestine Foster, whose husband, Vernon, died on the Stark, leav-
ing seven fatherless children.

A Tragedy in the Gulf, NEWSWEEK, June 1, 1987, at 17. That Reagan’s own grip on reality may be
tenuous at best may explain his skill in fashioning illusory images for a public desperately seeking
their reality. See generally G. WILLS, REAGAN’S AMERICA: INNOCENTS AT HOME (1987); M.

23. See supra note 10.

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assumption that private activity is in fact purely private, so that the exer-
cise of private power does not appear to be publicly sanctioned oppres-
sion. Thus, the public law promulgated by governing bodies exercising
sovereign authority in the public realm is clearly to be distinguished from
private law-property, torts, and contracts-which simply facilitates the
private ordering of social and economic life. Private law doctrine, in its
classic form, was thus a long and detailed meditation on the idea of pro-
tected free choice within judicially determined limits which also pro-
tected the rights of others. Legally determinable rights meant that each
person was secure as against both public coercion and oppressive private

The private rights which are about freedom, however, are also nec-
essarily about exclusion. The possibility of liberty and free choice always
carries with it a negativity-this is mine, therefore it is not yours. I’ve got
it so you do not. Similarly, while there is a positive respect of another’s
autonomy and right to choice in recognizing the other as rightholder,
there is a negativity to that respect, for it is always premised on the de-
nial of the freedom to share. “Because you have it, it is not mine; because
it is yours, I cannot have it without your consent.” Of course, a major
premise of traditional marketplace theory was that consent was some-
thing that must be purchased, and thereby experienced as an alienating

That the line between public and private is logically incoherent has
been apparent since the Legal Realist movement of the 1920s and 1930s.
The realist scholars, part of the general twentieth-century revolt against
formalism and conceptualism,24 convincingly undermined all faith in the
objective existence of rights by challenging the coherence of the key legal
categories that gave content to the notion of bounded public and private

Property, for example, is thought to be the paradigmatic private
right. In his famous essay, Property and Sovereignty, Morris Cohen
pointed out that property is necessarily public, not private, since prop-
erty means the legally granted power to withhold from others.2″ As such,
it is created by the state and given its only content by legal decisions that
limit or extend the property owner’s power over others: Thus, property is
an always conditional delegation of sovereignty, and property law is sim-


25. Cohen, Property and Sovereignty, 13 CORNELL L.Q. 8 (1927).


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ply a form of public law. Similarly, with respect to freedom of contract,
the power to exclude or withhold is central to the supposedly freely en-
tered bargain. Free consent to the other’s terms is in fact forced consent,
for it derives from the other’s legally sanctioned threat to withhold what
is owned except upon the demanded payment.26 It is the state that dele-
gates the power to exclude and, therefore, to set the terms. Without pub-
lic coercion there would be no private freedom of contract. Thus, the line
between private right and public power dissolves, with the former col-
lapsing into the latter.27

Despite its apparent incoherence, however, the language of public
and private persists, both in legal discourse and as part of our experience.
Its continuing viability and power to legitimate may be due, in large part,
to its manipulability. It can easily be turned inside out precisely because
it has no logical content at all.28 The legal literature is filled, for example,
with theoretical invocations of public welfare, used to justify the consoli-
dation of what are merely hierarchical property relations. Therefore, in
the typical exclusionary zoning case, the supposedly free private market
would allow developers to subdivide building lots and erect cheap hous-
ing, in otherwise fancy, usually all-white, neighborhoods. In such situa-
tions the community is allowed to establish rules that prohibit such
unhampered irresponsible market activity, despite the fact that the com-
munity, with its police power, is being invoked simply to cement into
place the product of private, acquisitive, racist behavior. 9

Similarly, the public purpose doctrine has been invoked repeatedly
to justify subsidies to enterprises that otherwise claim the right to be
treated as private. Historically, railroads were notorious beneficiaries.
The state’s eminent domain rights were granted to railway companies on
the theory that the public would benefit from an expanding transporta-

26. See Hale, Bargaining, Duress, and Economic Liberty, 43 COLUMBIA L. REV. 603 (1943);
Hale, Coercion and Distribution in a Supposedly Non-Coercive State, 38 POL. Sci. Q. 470 (1923).

27. Arthur Jacobson argues that the whole law of associations, agency, partnership, trust, joint
stock companies, corporations, and the “fundamental and pervasive concept of fiduciary relations”
can properly be understood only as a “distribution of sovereignty to private persons beyond the
precincts of the state apparatus.” Jacobson, The Private Use of Public Authority: Sovereignty and
Associations in the Common Law, 29 BUFFALO L. REV. 599, 600 (1980).Thus relations usually con-
ceived of as private actually involve direct participation in sovereignty, and “theories of state and
economy that divorce sovereignty from the daily business of private life are in error.” Id. at 600.

28. For a history of the early development of the public-private distinction, demonstrating its

UNITED STATES (1985) (development of suburbs as insular enclaves).

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tion system, even while the companies, of course, retained their right to a
private profit.3

Modem examples abound. Conventional free-market ideology extols
the virtues of private capital accumulation, entrepreneurial skill, and the
harsh reality of risk. Yet tax breaks are granted to entice industries to
invest or remain in localities. Cities compete f6r the opportunity to pro-
vide sports teams with ever more luxurious stadiums. Huge companies
get government help when they face financial ruin. Private companies
rarely turn down the opportunity to feed greedily at the public trough.

Two recent cases serve to illustrate the point.3 1 In Poletown Neigh-
borhood Council v. City of Detroit,32 the court invoked the public charac-
ter of large private enterprise in allowing a whole neighborhood in
Detroit to be destroyed, at a huge personal cost to displaced neighbor-
hood residents, so that General Motors could build a plant on that loca-
tion. The theory was that the public good would result from the plant’s
opening, for of course the plant meant jobs. As companies bargain with
municipalities for favors, it is always the workers who are held hostage.
Conversely, however, in Local 1330, United Steelworkers v. U.S. Steel,3 3

an appellate court affirmed the privateness of large corporations and re-
fused to stop the closing of two plants in Youngstown, Ohio, despite the
court’s stated awareness that the move would cause “an economic trag-
edy of major proportion” in the area.34 Rejecting the argument that the
local community had gained a recognizable property interest or commu-
nity “right” in the plants over the years, the court held that because the
company was privately owned, its economic decisions were beyond pub-
lic reach. 5

The point here is not that the courts got it wrong in attempting to
make their public-private decisions, but rather that anything can be de-
scribed as either public or private. Decisions during the 1985-1986
United States Supreme Court term illustrated that point vividly. The
Court refused to hold airlines sufficiently “public” to be required to com-
ply with anti-discrimination laws with respect to the treatment of the

31. We are grateful to our colleague, Fred Konefsky, for suggesting the juxtaposition of these

two cases.

32. Poletown Neighborhood Council v. City of Detroit, 410 Mich. 616, 304 N.W.2d 455 (1981).
33. Local 1330, United Steel Workers v. United States Steel Corp., 631 F.2d 1264 (6th Cir.

34. Id. at 1265.
35. Id. at 1281-82. For a detailed and insightful discussion of these issues, see Singer, The

Reliance Interest in Property, 40 STAN. L. REV. 611 (1988).


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handicapped, 6 despite the quite apparent subsidization of commercial
airlines through the air traffic controller system. Recall, however, that
when the air-traffic controllers went on strike and were subsequently
fired by President Reagan, the President specifically noted that the con-
trollers were part of a public service. He could not have fired them if the
controllers were part of the private sector.

Only a of couple of weeks later, in the infamous Bowers v. Hard-
wick 37 case, the Court announced that even voluntary consensual sexual
acts were not sufficiently private to preclude state regulation. While the
Act that was upheld was apparently directed against homosexuals, on
whom the Court has never conferred rights as such, the Court did not
seem to preclude regulation of sexual acts even between husband and
wife. In effect, that which seems at the experiential level most private-
sex-is declared public, while that which seems most public-air traf-
fic-is declared private. Paradoxically, the legal system defines the world
for us as public and private, informing every aspect of our lives. Then, in
its particular definitions, it is free to stand in dramatic contradiction to
our daily experience.

The indeterminacy, which helps to make the public-private split so
powerful as legitimation, is closely related to the fourth associated no-
tion, that of contradiction. As the airline-sexuality pairing demonstrates,
neither public nor private, as a category, has any objective content. 3 8 As
a result, contradictory arguments about whether or not something is a
private right can always be generated. As a matter of pure logic, nothing
is excluded from the state’s legitimate concern for the public welfare.
Similarly, as between two conflicting private rights, logical arguments
can always be made for either side. My private right to be secure from
the invasion of a nuisance, like the smelly chemicals a neighbor sprays on
her lawn, conflicts with her right to use her property freely. My right to
be secure from oppressive competition conflicts with her freedom to en-
gage in unbridled freedom of contract on the market. The state cannot

36. United States Dept. of Transp. v. Paralyzed Veterans of America, 477 U.S. 597 (1986).
37. Bowers v. Hardwick, 106 S.Ct. 2841 (1986), reh’g denied by Bowers v. Hardwick, 107 S.Ct.

29 (1986).
38. Karl Klare demonstrates both the indeterminacy and incoherence of the public-private dis-

tinction as it is used in the rhetoric of American labor law. Klare, The Public/Private Distinction in
Labor Law, 130 U. PA. L. REV. 1358 (1982). He also argues that “the use of such rhetoric obscures
rather than illuminates, and that the social function of the public-private distinction is to repress
aspirations for alternative political arrangements by predisposing us to regard comprehensive alter-
natives to the established order as absurd.” Id. at 1361. He calls for a new vision of solidarity,
transcending the public-private split, which would simultaneously be a vision of autonomy-a “form
of social life that nurtures the capacity of every individual to experience self-realization.” Id,

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simply protect rights, but instead must always decide between two per-
fectly logical and mutually exclusive rights.

The problem of contradiction has been written about elsewhere,
chiefly as impairing the legal system’s claim to be a neutral protector of
rights.39 It also plays itself out at the level of experience, in our sense of
how we should relate to others. The contradiction between market free-
dom and security of expectations, which pervades private law discourse,
reflects deeply held beliefs about how we should act in the world. What
we find is that we end up believing in contradictory values. At one level
we believe we should be free to take advantage of another’s weaknesses in
the market. On another level we feel obliged to act with some regard for
the interests of others. First-year law students are genuinely troubled
when they discover that contract law, for example, does not have a con-
vincing answer to the question of where self-interest should end and
where concern for another’s security should begin. What their unhappi-
ness reveals is that they believe in both the free exercise of self-interest
and in the good-faith protection of others, and yet they know that they
cannot have it both ways. They then find themselves feeling immobilized.
How can one make a strong moral choice in the face of evident contra-
diction? What law students begin to recognize self-consciously is exper-
ienced by most people as an inarticulated sense of moral immobilization.

The fact that contradiction undermines the legal system’s claim to
be a neutral protector of rights also intensifies the degree to which the
triadic structure of state/self/other pervades our relationships. At any
given time, one’s position with respect to another has to be seen as a
function of a series of logically incoherent choices that the state has
made. These choices have sometimes been favorable and sometimes an-
tagonistic. If you complain about your neighbor’s barking dog, the police
may give your neighbor a hard time, or they may tell you that barking
dogs are to be endured as a fact of neighborhood life. The police may
show up next time, having been called by your neighbor, and request that
you mow your overgrown weed-filled lawn. However, you may convince
them that you are an ecologist experimenting with a natural lawn. The
state always has had a past history as friend or foe, and always has a
potential future of favoring self over others, or vice versa. The fact that
those choices cannot be preordained, or logically compelled, makes the
presence of the state as a wielder of power more acutely felt.

Some commentators have pointed to a weakened legal confidence in

39. See, eg., Boyle, The Politics of Reason: Critical Legal Theory and Local Social Thought, 133
U. PA. L. REV. 685, 697 (1985).


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the distinction between public and private as it relates to economic ques-
tions.4° This is probably a legacy of the New Deal regulation of business
activity and the tenor of that era’s Court, although the current Court
may be headed back in the direction of resurrecting the old bright-line
boundary between state and market. It is common, however, especially
among liberals, to consider some areas problematic while at the same
time assuming that there is some core, intrinsic meaning to the notion of
privacy, one that is natural rather than simply a creation of legal-political
ideology. Consequently, one might willingly concede that Con Edison is
not obviously and perfectly private, but what about my home, my body,
my thoughts?

Even in such cases, however, the supposed core right to privacy can
be collapsed into the utterly conventionalized contradictory arguments
made in the economic area. Therefore, my freedom to keep a goat in my
home and yard conflicts with my neighbors’ collective right to be secure
in the respectability of the neighborhood in which they have invested.
Similarly, one person’s right to the free enjoyment of sexual fantasy con-
flicts with another’s right to be secure against degrading and exploitative
use of bodies. Moreover, as in the market, even within the family we can
have no faith in the supposed purity of private, subjective consent, be-
cause consent is always in part a function of role and social expectation.
A wife’s consent to sexual relations with her husband, for example, is in
part publicly constructed. This is true since we inescapably act out the
social representations of the roles assigned to us. As a result, the wife’s
consent is inevitably consent by a person who thinks of herself by refer-
ence to the category wife, and the publicly created consciousness of
“wife” informs even her most private, subjective decisions.41

If the structure of private right and state power renders incoherent
the vocabulary of rights, how then can we affirm the values that seem
most important to us? Feminists, for example, feel deeply divided within
themselves on the question of pornography. In the face of the debasing
use of female bodies we are tempted to seek protection. The state should
ensure our security as against exploitation, irrespective of the
pornographer’s invocation of a private right to freedom of speech. Yet
the same state that might side with us on this issue could also end up as

40. See, eg., Kennedy, The Stages of the Decline of the Public/Private Distinction, 130 U. PA. L.
Rav. 1349 (1982).

41. The example comes from Peller, The Metaphysics ofAmerican Law, 73 CALIF. L. REV. 1152
(1985) (containing a thorough discussion of the public-private issue as an elaboration of the core
liberal dilemma of subject and object).

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the ally of the Phyllis Schlafflys of the world, who would oppress us with
their convention. Similarly, the same first amendment invoked by our
exploitative enemy may, in another situation, be our protector against
oppressive state power.42

In that sense, the triadic structure of self/state/other alienates us,
not just from each other, but from our own values as well. We think we
sense evil and domination, yet we feel disempowered by our very subjec-
tivity from asserting its existence and even from knowing what we really
believe. For that reason, paradoxically, at the experiential level the belief
in rights and protected, autonomous subjectivity in fact leads us to
doubt, rather than trust, our own beliefs. If we have nothing to go on,
except our own privatized subjectivity, the fear of the disapproval of
others is heightened. Consequently, rampant individualism may in fact
lead to tightened social conformity.4 3

That particular dynamic of privacy and conformity may serve al-
ways to undermine the freedom which the category of privacy theoreti-
cally protects. The freedom held out by subjectivity is so frightening, in
its imposition of awesome responsibility, that one is driven always to seek
objective answers from some authoritative other. As Foucault has
pointed out, for example, nothing in Western culture has been labelled so
deeply private and related to self as sexuality, yet nothing has been so
subject to social discussion and dissection.’ The more intensely we feel
sexuality to be the most private thing there is about ourselves, the more
we are drawn to make it part of an incessant public discourse, obsessively
holding every detail up for public scrutiny.4 5

That final, paradoxical contradiction raises some difficult questions

42. Ruth Colker has argued that women, as an oppressed group, stand more to lose than gain
from the traditional legal conception of privacy, with its individualistic perspective. Colker, Pornog-
raphy and Privacy: Towards the Development of a Group Based Theory for Sex Based Intrusions of
Privacy, 1 LAW & INEQUALITY 191, 198-99 (1983). Focusing on the law’s failure to protect women
in the area of pornography, she states, for example, that “[p]rivacy doctrine has confined women to
the private sphere, beyond-the reach of public law, beyond protection from offensive intrusions….
It preserves, protects, strengthens, masks, hides, distorts, and neglects women’s sexual abuse.” Id. at
198-99. She calls instead for a theory of group-based oppression, which, among other advantages,
would not exclude poor women from protection. Id. at 200-01. See also Colker, Published Consen-
tiess Portrayals: A Pioposed Framework for Analysis, 35 BUFFALO L. REV. 39 (1986).

CAN LIFE 146-63, 167-95 (1985).

45. Consider, for example, the visual assault of magazine and tabloid headlines at the typical

supermarket checkout counter: “The Role of Sexual Fantasy in the Lives of Nice Girls;” “Men Over
50 Can Have Multiple Orgasms;” “Foreplay: Those Sweet Tender Moments. A Thing of the Past?
Not if You Do This;” “Are You and Your Mate Sexually Compatible?”


HeinOnline — 36 Buff. L. Rev. 253 1987


about the use of legal categories to promote social change and, ulti-
mately, about how we might begin to conceive of alternative human rela-
tionships with new and different notions of selves and others. A recent
New York City criminal case, People v. Graydon,” illustrates these is-
sues. The defendant was arrested and charged with the crime of “sexual
abuse in the second degree,” committed when he “repeatedly rubbed the
leg of an eleven year old girl prior and subsequent to her demands that he
cease.”’47 The statutory definition of the crime required “sexual contact,”
which in turn required “the touching of the sexual or other intimate
parts.”4 8 Thus the court had to decide whether the victim’s leg was an
“intimate part.”

The case raises some obvious and less obvious issues about legalism,
and ultimately, about the extent to which we are hopelessly caught up in
the public-private dilemma. First, the easier issues. The simplest way to
think about the case is as a problem in semantics. Does the definition of
“intimate part” include or exclude “leg?” The assumption here is that
people are free in the private realm to do whatever they want, unless the
law of the public realm says otherwise. To be guilty of unconsensual leg
rubbing in a context like the one in Graydon requires a prior announce-
ment by the criminal code that the conduct is not legal. Related to the
definitional approach would be concerns about rights of the accused, as,
for example, whether the statute was clear enough to give adequate no-
tice to persons contemplating the behavior that they might end up crimi-
nally liable. Thus, we cannot deal with the definitional issue even in
semantic terms until we decide whether the words must be strictly or
liberally construed. One quickly discovers that the issue cannot be dealt
with as a definitional matter at all. “Intimate part” is not an objective
feature of reality, but a question of social construction built on the al-
ways manipulable line between public and private.

At that point someone will suggest that we must consider the pur-
pose of the statute, since a well-trained legal mind could decide the case
by reference to purpose without pretending to find a formal definitional
answer. But what is the purpose? Is it to build a wall of protection
around the bodies of all eleven-year old girls from head to foot since
consent is not a defense? Or is it to divide the world of touchings into

46. People v. Graydon, 129 Misc. 2d 265, 492 N.Y.S.2d 903 (N.Y. Crim. Ct. 1985),

47. Id. at 265, 492 N.Y.S.2d at 904.
48. Id. at 266 n.1, 492 N.Y.S.2d at 904 n.1 (quoting N.Y. PENAL LAW § 130.00(3) (McKinney


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innocent and not so innocent touchings depending on the part of the
body touched, or the intent of the violator?

At this point, a now somewhat outraged feminist will tell us, not
without justification, to stop the legalistic fussing. The feminist will con-
tend that what is really happening is that a disgusting male, steeped in a
sexist, patriarchical culture that regards the bodies of women, especially
young women, as arenas for the pursuit of male pleasure, is engaging in
degrading, exploitative behavior that serves to perpetuate traditional pat-
terns of domination over women. And if the purpose of the law is not to
stop that, it has no purpose at all. In fact, the easy answer to the defini-
tional problem is that the young woman’s entire body is an intimate part.

But the story can be told differently. The court does have to choose
between conflicting claims: On one side, the girl’s right to protected bod-
ily security; on the other, the man’s right to freedom from interference
with spontaneous sexual behavior. All costs are reciprocal.4 9 To confer
security on the girl infringes on the man’s freedom. To protect the man
in his choice restricts the girl’s right to say no. One could also describe
the story as that of an otherwise lonely, isolated, sad man, a man accus-
tomed to no human contact at all, and merely reaching out toward some-
one in a furtive, hopefully anonymous gesture.

Many people do not even want to hear that version of the story. And
for good reason, given the social reality of abuse, sexual and otherwise, of
women and girls by men. But, in our society and culture, that takes us
right back to the public-private dilemma. The question that pervades this
case is how we relate to our own bodies. One model might be called the
conservative model. That model says that our bodies belong to the state,
or to God, with questions about our bodies being appropriate matters of
public decision making in the name of the moral authority of the state, or
the church. On that view, the state can decide that the bodies of eleven
year old girls are morally off limits, whether or not the individual in
question wills otherwise. That same state, however, could decide to ban

49. The point of reciprocity was most forcefully made by Ronald Coase, whose Coase theorem
is now the (in)famous foundation for the law and economics approach to legal decision making. As
part of his analysis, Coase pointed out that the recourse to commonsense notions of cause does not
adequately describe the imposition of social cost. For example, where a factory spews out offensive
smoke onto nearby houses, one is inclined to say that the factory owner is imposing a cost on the
residents. Nevertheless, it is equally true that if the residents successfully claimed a right to be free
from smoke, then they would be imposing a cost on the factory owner, who would be forced to move
elsewhere, pay for smoke prevention, or buy off the residents. Thus the relevant legal question is not
“should the factory owner be forced to pay for the cost she is imposing on the residents,” but rather,
“which of the two parties–owner or residents-should be entitled to impose a cost on the other?”
See Coase, The Problem of Social Cost, 3 J. L. & EcoN. 1 (1960).


HeinOnline — 36 Buff. L. Rev. 255 1987


abortions, or what it deems immoral sexual behavior between even con-
senting adults.

The conservative model is simply a decision that bodies, unlike, for
example, economic decisions about capital mobility or plant closings, are
on the public side of the public-private line. The liberal retort is not to
dispute the line, but to move it. The body then becomes one’s property,
with which one can deal and consent, in a contractual way, to have
touched or intruded upon by others. The basic model, like private prop-
erty itself, is the exclusion of others, the primacy of mine, and an affirma-
tion of our alienated distance from one another protected and guaranteed
by the state. To assert privacy in the name of protecting our bodies
against oppression is still to assert the liberal worldview. “It’s my body,
keep others away.” “It’s my factory. Keep the angry local citizens out
while I close it down, so I can move to the Mexican border and find
cheaper non-union labor.”

On the other hand, one cannot dispute, and one should not demean,
the liberating force of “It’s mine and you cannot touch it, or touch me”
as asserted, for example, by an abused wife invoking the state to control
and punish her abusive husband. In contexts of oppression, one cannot
deny the rhetorical and political power of the imagery of privacy.”0 The
dilemma is the extent to which what generates a moment of liberation
soon serves to replicate, by use of the very same arguments, the world we
are trying to change.

Is there an even imaginable radical alternative view of bodies that
does not require us to go on living the public-private split? Two related
agendas suggest themselves. One is to recognize that the decision to em-
ploy the rhetoric of privacy is just that, a strategic move. The real prob-
lem is contexts of oppression, relations of domination that must be
undone, old habits of power that must be untrained. From that perspec-
tive, the issue is not the privacy of bodies as such, but how to fashion a
world without our current hierarchies of power, one of which is the phys-
ical abuse of women by men. That suggests the other agenda-the fash-
ioning of communities where one need not hide behind the private for
either protection or self-aggrandizement. Communities where relation-
ships might be just “us, you and me, and the rest of us,” deciding for
ourselves what we want, without the alienating third of the state.5″ In

50. For a vivid and chilling depiction of a setting so oppressive that the most minimal experi-
ence of privacy becomes the only basis of freedom, see M. ATWOOD, THE HANDMAID’S TALE

51. Our doubt about the degree we can trust one another, embedded in the public-private split,

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that setting, however remotely possible it may seem, .we might even make
group decisions about reproduction, replacing our pervasive alienation
and fear of one another with something more like mutual trust, or love.

leads to reliance on an outside authority to resolve the problem. Yet, so long as the authority re-
mains outside, the doubt cannot be overcome. See, eg., Gabel, The Phenomenology of Rights-Con-
sciousness and the Pact of the Withdrawn Selves, 62 TEx. L. REv. 1563 (1984).


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Moore v. City of Cleveland.pdf


Plural Marriages.pdf

The Trouble with Normal.pdf


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In recent years, lots of progressive people have been celebrating marriage — when various states have passed laws
recognizing same-sex marriage, when courts have made decisions affirming the legal recognition of same-sex
marriage, when politicians have spoken in favor of it. At the same time, many queer activists and scholars have
relentlessly critiqued same-sex marriage advocacy. Supporters of marriage sometimes acknowledge those critiques,
and respond with something like: While marriage is not for everyone, and won’t solve everything, we still need it.

What’s the deal? Is same-sex marriage advocacy a progressive cause? Is it in line with Left political projects of racial
and economic justice, decolonization, and feminist liberation?

Nope. Same-sex marriage advocacy has accomplished an amazing feat–it has made being anti-homophobic
synonymous with being pro-marriage. It has drowned out centuries of critical thinking and activism against the
racialized, colonial, and patriarchal processes of state regulation of family and gender through marriage. It is to such an
understanding of marriage we first turn.


I. What is Marriage?
Civil marriage is a tool of social control used by governments to regulate sexuality and family formation by establishing
a favored form and rewarding it (in the U.S., for example, with over one thousand benefits). While marriage is being
rewarded, other ways of organizing family, relationships and sexual behavior do not receive these benefits and are
stigmatized and criminalized. In short, people are punished or rewarded based on whether or not they marry. The idea
that same-sex marriage advocacy is a fight for the “freedom to marry” or “equality” is absurd since the existence of
legal marriage is a form of coercive regulation in which achieving or not achieving marital status is linked to accessing
vital life resources like health care and paths to legalized immigration. There is nothing freeing nor equalizing about
such a system.

In her famous 1984 essay, “Thinking Sex,” Gayle Rubin described how systems that hierarchically rank sexual
practices change as part of maintaining their operations of control. Rubin described how sexuality is divided into those
practices that are considered normal and natural–what she called the “charmed circle”– and those that are considered
bad and abnormal–the “outer limits.”

Practices can and do cross from the outer limits to the charmed circle. Unmarried couples living together, or perhaps
homosexuality when it is monogamous and married, can move from being highly stigmatized to being considered
acceptable. These shifts, however, do not eliminate the ranking of sexual behaviors; in other words, these shifts do not
challenge the existence of a charmed circle and outer limits in the first place. Freedom and equality are not achieved
when a practice crosses over to being acceptable. Instead, such shifts strengthen the line between what is considered
good, healthy, and normal and what remains bad, unhealthy, stigmatized, and criminalized. The line moves to
accommodate a few more people, who society suddenly approves of, correcting the system and keeping it in place.
The legal marriage system–along with its corollary criminal punishment system, with its laws against lewd behavior,
solicitation, indecency and the like– enforces the line between which sexual practices and behaviors are acceptable
and rewarded, and which are contemptible and even punishable.

Societal myths about marriage, which are replicated in same-sex marriage advocacy, tell us that marriage is about
love, about care for elders and children, about sharing the good life together–even that it is the cornerstone of a happy
personal life and a healthy civilization. Feminist, anti-racist, and anti-colonial social movements have contested this,
identifying marriage as a system that violently enforces sexual and familial norms. From these social movements, we
understand marriage as a technology of social control, exploitation, and dispossession wrapped in a satin ribbon of
sexist and heteropatriarchal romance mythology.


Marriage is a tool of anti-Black racism.

Since the founding of the US, regulating family formation has been key to anti-Black racism and violence. Denying the
family ties of slaves was essential to slavery—ensuring that children would be born enslaved and maintaining Black
people as property rather than persons. After emancipation, the government scrambled to control Black people,
coercing marriage among newly freed Black people and criminalizing them for adultery as one pathway of recapturing
them into the convict lease system. After Brown v. Board of Education, which challenged formal, legal segregation,
illegitimacy laws became a favored way to exclude Black children from programs and services. The idea that married
families and their children are superior was and remains a key tool of anti-Black racism.

Black families have consistently been portrayed as pathological and criminal in academic research and social policy
based on marriage rates, most famously in the Moynihan Report. Anti-poor and anti-Black discourse and policymaking
frame poverty as a result of the lack of marriage in Black populations. Clinton’s 1996 dismantling of welfare programs,
which disproportionately harmed Black families, was justified by an explicit discourse about poverty resulting from
unmarried parenthood. Under both President George W. Bush and President Barack Obama, “Health Marriage
Promotion” initiatives have been used to encourage low-income women to marry, including at times through cash
incentives. Demonizing,

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incentives. Demonizing,

managing and controlling

Black people by applying

racist and sexist marital

family norms to justify both

brutal interventions and

“benign neglect” has a long

history in the US and

remains standard fare.


Marriage is a tool of

Colonization often casts

invasion as rescuing

colonized populations from

their backward gender and

family systems. We can see

this from the land we’re

writing this on (Washington,

D.C. & Washington State) to

Afghanistan. Forcing

indigenous people to

comply with European

norms of gender, sexuality

and family structure and

punishing them for not

doing so has been a key

tool of US settler

colonialism in North

America. Marriage has been

an important tool of land

theft and ethnic cleansing

aimed at disappearing

indigenous people in many

ways. The US encouraged

westward settlement by

promising male settlers 160

acres to move west, plus an

extra 160 if they married

and brought a wife. At the

same time, the US

criminalized traditional indigenous communal living styles, burning longhouses where indigenous people lived

communally, eliminating communal landholding methods, and enforcing male individual ownership. Management of

gender and family systems was and is essential to displacement and settlement processes. Enforcing gender norms in

boarding schools as part of a “civilizing mission,” and removing children from native communities through a variety of

programs that persist today are key tools of ethnic cleansing and settlement in the US.


Marriage is a tool of xenophobia and immigration enforcement.

From its origins, US immigration law has put in place mechanisms for regulating those migrants it does allow in, always

under threat of deportation, and labeling other migrants “undesirable” to both make them more exploitable by their

bosses and easier to purge. Keeping out poor people, people with stigmatized health issues, and people of color have

been urgent national priorities. Marriage has been one of the key valves of that control. The Page Act of 1875, for

example, sought to keep out Asian women, hoping to prevent Asian laborers in the US from reproducing, but allowed

the immigration of Asian merchants’ wives. Marriage continues to be a deeply unjust tool of immigration control in the

US, with marital family ties being one of the few pathways to immigration. One impact of this system is that it keeps

people stuck in violent and harmful sexual and family relationships because their immigration status depends on it.


Marriage is a tool of gendered social control.

Feminists have long understood marriage as a tool of social control and labor exploitation. This is why feminists have

worked to dismantle the mystique around romance, marriage, child rearing and care–exposing these as cultural

fantasies that coerce women into unpaid labor and cultivate sexual violence. They have also worked to change laws to

make it easier to get out of marriages, and to de-link marital status from essential things people need (like immigration

and health care) because those links trap women and children in violent family relationships.


Marriage is about protecting private property and ensuring maldistribution.

Marriage has always been about who is whose property (women, slaves, children) and who gets what property.

Inheritance, employee benefits, insurance claims, taxation, wrongful death claims–all of the benefits associated with

marriage are benefits that keep wealth in the hands of the wealthy. Those with no property are less likely to marry, and

have less to protect using marriage law. Movements for economic justice are about dismantling property systems that

keep people poor—not tinkering with them so that people with wealth can use them more effectively to protect their


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Today’s same-sex marriage advocates argue in courts and in the media that marriage is the bedrock of our society, that
children need and deserve married parents, and that marriage is the most important relationship people can have.
These arguments are the exact opposite of what feminist, anti-racist and anti-colonial movements have been saying for
hundreds of years as they sought to dismantle state marriage because of its role in maldistributing life chances and
controlling marginalized populations.



II. Common Contemporary Responses to Critiques of Same-Sex Marriage

You don’t have to get married if you don’t want to.

Same-sex marriage has been framed through a paradigm of “choice,” that some of us can do this if we want to, and
those that don’t want to should back off and let us plan our weddings already. But such choices take place in a field of
limited options already structured by legal and cultural systems. Coercive systems distribute rewards and punishments-
– marriage punishes those who do not participate in it. Saying that marriage is an individual choice hides this. Marriage
is part of a system where the government chooses some relationships, family structures and sexual behaviors as the
gold standard and rewards them, while others are stigmatized and/or criminalized. Many people are not and never will
be in marriage-like relationships. When proponents counter-argue that those who want to get married should be
allowed to do so, the damage that the existence of a marriage system does to everyone who is not deemed acceptable
through it is either erased or justified. When we look at marriage only as something individuals can choose to do or not
do, we abandon any possibility of meaningful resistance or change. Individualized, aesthetic “challenges” like asking
wedding guests to donate to charity in lieu of a gift or having a female “best man” become the only political action
imaginable. These types of challenges do not work toward dismantling marriage as a system of rewards and
punishments. Ultimately, marriage is about control, not about individuals freely choosing from a menu of options.


But marriage is about love and love is revolutionary!

 As described above, marriage is about controlling people and property for the benefit of white people, wealthy people
and settlers. It does so under the cover of a consumer-driven mythology about love. US popular culture is permeated
by a set of myths about sex and romance that feminists have long worked to analyze and dismantle. We are told that
people, but especially women, have empty, useless lives unless they are married. Women are encouraged to feel
scarcity about the ability to marry—to feel that they better find the right person and convince him to marry them quickly
—or else face an empty life. In this equation, women are valued only for conforming to racist and sexist body norms
and men are also objectified and ranked according to wealth. These myths drive the diet industry, much of the
entertainment industry, and certainly the gigantic wedding industry ($40 billion per year in the US), which is based on
people’s terrified attempts to appear as wealthy, skinny, and normative as possible for one heavily documented day.
Feminists understand the scarcity and insecurity that women are trained to experience about love, romance and
marriage as a form of coercion, pushing women into exploitative and abusive sexual relationships and family roles.
Media messaging about how essential marriage and childrearing is for women to have a meaningful life is part of an
ongoing conservative backlash against feminist work that sought to free women from violence and unpaid domestic

This does not mean that people do not experience love in many ways, including in romantic relationships. But the
system of marriage is not about the government wanting to recognize people’s love and support it—it is about
controlling people and resources. Same sex marriage advocacy has bolstered conservative mythologies about how
marriage is about love and is the best way to have a family.


But if I want to express my love this way, stop telling me how to be queer!

One common response to critiques of same-sex marriage advocacy is defensiveness by those who are married or want
to be married. These people often claim to feel judged by the critics. This response, reducing a systemic critique to a
feeling of discomfort about being individually judged, is so disappointing coming from anyone on the Left! Haven’t we
learned to recognize that we are implicated in oppressive systems, and even benefit from them? Don’t we know how to
hear a critique of a system that we’re implicated in and realize that we should not silence it to dispel our discomfort, or
pretend to be victimized by the critique because it is hard to recognize our own privilege? Okay, we’re not great at it,
but let’s work on that. It is absurd for married people or people who want to marry to paint themselves as victims of
judgment when someone critiques the institution of marriage while the entire society is organized to support them for

Critics of marriage are not just individual anti-assimilationists judging other individuals for assimilating. The critique of
marriage is not about promoting one kind of queer culture over another, it is about material distribution. People should
have whatever parties and dates they want. The point is that they should not be rewarded for that with immigration
status or health care. When critiques of marriage are reduced to just being about assimilation, all the racial and
economic justice and decolonial analysis is left out, which is probably why this reductionist version gets the most play.
Don’t get us wrong, the anti-assimilation argument is an important rallying cry: We don’t want to marry, we just want to
fuck. Queer counterculture does matter, because for some people in some places and times it has been a key tool for
survival and producing alternatives, but the critique of marriage should not be boiled down to an aestheticized radical
queer counterculture. The anti-assimilation argument alone risks reifying the “choice model” – as if we can opt in and
out of these systems. But in fact we all are implicated in heteropatriarchy, colonialism, white supremacy, and capitalism.
The question becomes about how we survive in those systems while dismantling them. The goal is to build a world
where everyone gets what they need and it is not conditioned on conforming to sexual, gender or family norms.
Dismissing critics of marriage as judgey queers dangerously silences important conversations about movement

6/2/2016 Marriage Will Never Set Us Free – Organizing Upgrade 4/6


But it will get people health care and immigration status.

Why should anyone have to get married to get health care or immigration status? Same sex marriage advocacy is sold

as a method of getting people vitally needed resources, but most undocumented queer people don’t have a partner

who is a citizen and most uninsured/unemployed queer people don’t have a partner with a job with health benefits.

People tend to date in their own class statuses so we cannot partner our way out of immigration and health care crises,

nor is it acceptable for our movements to endorse that kind of coercion. Same-sex marriage advocacy is not a strategy

for really attacking these problems. At best it helps a few of the most privileged get these necessities, but those in the

worst circumstances see no change.


The Big Problems[1] The Official Lesbian

& Gay Solutions

Other Queer Political


Queer and trans people,

poor people, people of

color, and immigrants

have minimal access to

quality health care

Legalize same-sex

marriage to allow people

with health benefits from

their jobs to share with

same-sex partners


activism; fight for universal

healthcare; fight for

transgender health

benefits; protest deadly

medical neglect of people

in state custody

Unfair and punitive

immigration system

Legalize same-sex

marriage to allow same-

sex international couples

to apply for legal

residency for the non-U.S.

citizen spouse

Oppose the use of

immigration policy to

criminalize people of color,

exploit workers, and

maintain deadly wealth gap

between the U.S. and the

global south; support

current detainees; engage

in local and national

campaigns against “Secure

Communities” and other

federal programs that

increase racial profiling and


Queer families are

vulnerable to legal

intervention and

separation from the state

and/or non-queer people

Legalize same sex

marriage to provide a

route to “legalize” families

with two parents of the

same sex; pass laws

banning adoption

discrimination on the basis

of sexual orientation

Join with other people

targeted by family law and

the child welfare system

(poor families, imprisoned

parents, native families,

families of color, people

with disabilities) to fight for

community and family self-

determination and the

rights of people to keep

their kids in their families &


Institutions fail to

recognize family

connections outside of

heterosexual marriage in

contexts like hospital

visitation and inheritance

Legalize same-sex

marriage to formally

recognize same-sex

partners in the eyes of the


Change policies like

hospital visitation to

recognize a variety of

family structures, not just

opposite sex and same sex

couples; abolish

inheritance and demand

radical redistribution of

wealth and an end to



 It is unethical for movements to prioritize those with the most access. We should prioritize those vulnerable to the most

severe manifestations of homophobia and transphobia. That would mean putting resources toward real solutions to

these problems—the struggles against immigration enforcement and for health care access for all—and bringing

particular insight about homophobia and transphobia to these struggles. Legalizing same-sex marriage puts a stamp of

“equality” on systems that remain brutally harmful, because a few more-privileged people will get something from the


 A real approach to changing these systems includes asking why marital status is tied to immigration and health care

access, how queer and trans people are impacted by immigration imprisonment and deportation, and how homophobia

and transphobia create negative health outcomes and block health care access. There are big fights going on to stop

immigration enforcement expansion, end border militarization, detention and deportation and stop health care

profiteers from bleeding us all dry. Unfortunately, the biggest, richest gay organizations have not put those fights at the

center–even though they are the real pathways to addressing queer and trans immigration and health care problems–

because they’ve poured almost everything into marriage (the rest to military service and expanding criminal

punishment). Meanwhile, straight people on the Left have gotten convinced that they have to be in favor of same-sex

marriage or else they are homophobic, because they have been told it will solve important problems facing queer



6/2/2016 Marriage Will Never Set Us Free – Organizing Upgrade 5/6

But queers will change marriage

When people say this they are often referring to how the traditional gender roles of “husband” and “wife” will be altered

by the possibility of having two women or two men as married spouses. The problem is, we already know how sadly

little difference this will make. We know that queer relationships have the same rates of domestic violence (approx

30%) as straight relationships.

We know that adding women or queers or people of color to roles where they were traditionally excluded, such as

police forces or militaries, does not change those roles or the institutions that rely on them. The argument that adding

same-sex couples to marriage will “change marriage” is based on a hope for cultural shift that not only fails to address

that the harmful, racist and colonial structures of marriage stay firmly in place, but also ignores that same-sex marriage

advocacy has produced a much stronger cultural shift that has beat back feminist and anti-racist critiques of marriage

and re-valorized marriage with a romantic mystique.

Further, this argument for same-sex marriage advocacy locates marriage only in the realm of culture. Of course, culture

and economy interact in complex ways, and changing cultural norms about gender and sexuality is not irrelevant.

Shifting cultural norms often comes with economic rewards and opportunities, for those whose status is shifted. While

same-sex marriage legalization may shift the “meaning of marriage” in some symbolic ways, in no way at all does it

undo the damage produced by the institution as it distributes its rewards and punishments. It just gives some of those

rewards to some more people–same-sex couples with property to share, health benefits to share, and/or immigration

status to share might gain something, but the growing numbers of queer and trans people who are poor, unemployed,

undocumented and/or uninsured will see no change. It also further legitimizes the punishment of those who are

excluded by branding marriage as inclusive and just—so it must be your fault you’re all alone and have no health


Some people also argue that same-sex marriage advocacy has improved popular opinion about gay and lesbian

people, helping more people see gay and lesbian people as members of families, as parents, as ordinary couples

rather than through hyper-sexualized or pathologizing stereotypes. The problem with the limited newfound acceptance

won by this advocacy is that it hinges on portraying queer people as members of normative couples, reifying the

stigmatization of everyone who is not. Queer politics should be about dismantling the sexual and gender hierarchies;

same-sex marriage efforts are about getting those who can conform into the charmed circle. This couples’ rights

framework not only fails to challenge, but is actually aligned with, the ongoing expansion of criminalization of queer and

trans people through sex offender registries, sex trafficking statutes and other recent tools of criminalization. Inventing

a new inaccurate stereotype—one that portrays queer people as just a bunch of domesticated normative couples—is a

terrible strategy if our goal is to reduce the harms wrought by systems of sexual and gender coercion and violence.


But what you want is unwinnable—we need to take incremental steps and this is an incremental step towards

This is a heartbreakingly conservative argument that says there is no alternative to neoliberalism, to capitalism, to a

culture based on racist criminalization and imprisonment. We are relentlessly told not to imagine alternatives, and only

to tinker with hideous systems to let a few more people in. Legalizing same-sex marriage is not an incremental step

toward what queer and trans people need to reduce the harm and violence we face, it’s a moment when that harm is

being publicly officially resolved while in reality it worsens. The “deserving” and “undeserving” are further divided, and

the institution of marriage and its mystique are rehabilitated in the name of anti-homophobia.

Same-sex marriage advocacy celebrates and promotes marriage, abandons all those punished by marriage systems,

and tells us that while we shouldn’t get in the way of your wedding, we certainly can’t expect any solidarity from you.


III. Against Inclusion
Same sex marriage advocacy has been harmful just like other political strategies that seek inclusion in a violent state

apparatus–such as the fight for gay and lesbian military service. Inclusion strategies like these valorize the things they

seek inclusion in. Same-sex marriage advocacy has lined up with right wing family values rhetoric and policy to undo

the work of our movements to gradually dismantle marriage and separate access to key necessities from marital status.

It has aligned with conservative pro-marriage ideas about romance, children, families and care that support the attacks

on social welfare programs and most severely harm low-income mothers of color. It has rescued marriage from Left

critique and made straight and gay people on the Left forget what our movements have taught us about state

regulation of families and gender.

Inclusion arguments also require their advocates to divide their constitutencies by producing narratives about how “we

6/2/2016 Marriage Will Never Set Us Free – Organizing Upgrade 6/6

deserve to be included.” This has meant producing a world of representations of gay and lesbian couples who are
monogamous, upper class, tax-paying, obedient consumers. The stories have to focus on those who have something
to lose from not being able to marry–the white European immigrants America should want, the couples who want to
boost our economy with expensive weddings, the people with wealth to pass on when they die. The promotion of this
image of queer life and queer people as “rights deserving” couples who meet America’s racial, class and moral norms
participates in the relentless demonizing of all those cast out of the charmed circle–especially all the queer and trans
people facing criminalization for poverty, participation in the sex trade, homelessness, and all those who will not reap
the rewards of legal marriage.

We have been told that same-sex marriage is a grassroots movement, but this is not the case. The decision to produce
the giant machine of same-sex marriage advocacy that crowds out from public view all the other anti-homophobic and
anti-transphobic grassroots work happening in the US came from the top. The world of well-resourced gay rights
organizations and the few wealthy foundations and donors who fund them is tiny–the gay 1%. Its agenda is made
behind closed doors, and queer and trans 99%-ers only get to be reactive to these strategies, as their lives and
demands are framed by corporate media and the gay elite. Some eat it up, others talk back, but ultimately, we get no
say.   Perhaps if the same-sex marriage advocacy story is good for anything, it’s as a great illustration of the power of
philanthropy to shape a movement. We have seen what some say started at street rebellions against police violence at
the Stonewall Inn and Compton’s Cafeteria turn into advocacy for prosecution and partnership with police. We have
seen a movement birthed during and because of the radical politics of anti-war and decolonization resistance of the
1960’s and 70’s become focused on the right to serve in the US military. And we have seen the eclipse of queer,
feminist, anti-racist and decolonial critiques of government regulation of sexuality and family norms evolve into a
demand to get married under the law. It is stunning to watch, in such a short period, the rebranding of institutions of
state violence as sites of freedom and equality. As the same-sex marriage fight draws to a close in the coming years
and conditions remain brutal for queer and trans people without wealth, immigration status or health care, it is vitally
important that we support and expand the racial and economic justice centered queer and trans activism that has never
seen marriage as an answer.


Dean Spade is an associate professor at the Seattle University School of Law and is currently a fellow in the Engaging
Tradition Project at Columbia Law School. In 2002 he founded the Sylvia Rivera Law Project, a non-profit collective that

provides free legal help to low-income people and people of color who are trans, intersex and/or gender non-

conforming and works to build trans resistance rooted in racial and economic justice. He is the author of Normal Life:

Administrative Violence, Critical Trans Politics and the Limits of Law.


Craig Willse is an assistant professor of cultural studies at George Mason University, where he is also faculty adviser
for Students Against Israeli Apartheid. He is co-editor of Beyond Biopolitics: Essays on the Governance of Life and

Death. He is currently completing a book on the management of racialized housing insecurity in the context of


[1] Excerpt of Chart from Bassichis, Lee and Spade, Building an Abolitionist Trans & Queer Movement with Everything
We’ve Got, in Captive Genders: Trans Embodiment and the Prison Industrial Complex (eds. Stanley and Smith).

* We have removed the quote from Emma Goldman from the beginning of this piece because of its ableist language.
We are grateful for those who brought this to our attention.

BELOSO, “The Affective Economy of Marriage: OR, No Spouse Left Behind.”


Organizing Upgrade 2012 / Built by Union Labor

Berta E. Hern ndez Truyol Feminist Judgements pags. 24 39.pdf

Jarvis Abortion.pdf

Abortion Cases Time Line.pdf

1965 – Griswold v. Connecticut, 381 U.S. 479

The Supreme Court struck down a state prohibition against the prescription, sale, or use of
contraceptives, even for married couples. The Court held that the Constitution guarantees
a “right to privacy” when individuals make decisions about intimate, personal matters such
as childbearing.

1971 – United States v. Vuitch, 402 US 62

This the first about abortion to reach the Supreme Court. A doctor challenged the
constitutionality of a District of Columbia law permitting abortion only to preserve a
woman’s life or health. The Court rejected the claim that the statute was unconstitutionally
vague, concluding that “health” should be understood to include considerations of
psychological as well as physical well-being. The Court also held that the burden of proof
should be on the prosecutor who brought charges, not on the doctor.

1972 – Eisenstadt v. Baird, 405 US 438

The Supreme Court struck down a Massachusetts law limiting the distribution of
contraceptives to married couples whose physicians had prescribed them. This decision
established the right of unmarried individuals to obtain contraceptives.

1973 – Roe v. Wade, 410 US 113

This case challenged a Texas law prohibiting all but lifesaving abortions. The Supreme
Court invalidated the law on the ground that the constitutional right to privacy
encompasses a woman’s decision whether or not to terminate her pregnancy.
Characterizing this right as “fundamental” to a woman’s “life and future,” the Court held
that the state could not interfere with the abortion decision unless it had a compelling
reason for regulation. A compelling interest in protecting the potential life of the fetus could
be asserted only once it became “viable” (usually at the beginning of the last trimester of
pregnancy), and even then a woman had to have access to an abortion if it were necessary
to preserve her life or health.

1973 Doe v. Bolton – 410 US 179

The Supreme Court overturned a Georgia law regulating abortion. The law prohibited
abortions except when necessary to preserve a woman’s life or health or in cases of fetal
abnormality or rape. Among other conditions, the law also required that all abortions be
performed in accredited hospitals and that a hospital committee and two doctors in addition
to the woman’s own doctor give their approval. The Court held the Georgia law
unconstitutional because it imposed too many restrictions and interfered with a woman’s
right to decide, in consultation with her physician, to terminate her pregnancy.

1975 – Bigelow v. Virginia, 421 US 809

The Supreme Court ruled that states could not ban advertising by abortion clinics. Such
bans violate the First Amendment’s guarantees of freedom of speech and freedom of the

1979 – Bellotti v. Baird, 443 US 622

This case was a challenge to Massachusetts statute requiring women under 18 to obtain
parental or judicial consent prior to having an abortion. The Court found the statute
unconstitutional because, as it was interpreted by the state’s highest court, it gave either a
parent or a judge absolute veto power over a minor’s abortion decision, no matter how
mature she was and notwithstanding that an abortion might be in her best interests.
Bellotti v. Baird established that all minors must have the opportunity to approach a court
for authorization to have an abortion, without first seeking the consent of their parents,
and that these alternative proceedings must be confidential and expeditious.

1980 – Harris v. McRae, 448 US 297

The Supreme Court rejected a challenge to the Hyde Amendment, which banned the use of
federal Medicaid funds for abortion except when the life of the woman would be endangered
by carrying the pregnancy to term. The lawsuit challenging the federal ban was
unsuccessful. The Court held that states participating in the Medicaid program were not
obligated to fund medically necessary abortions under Title XIX. The Court found that a
woman’s freedom of choice did not carry with it “a constitutional entitlement to the
financial resources to avail herself of the full range of protected choices.” The Court ruled
that because the Equal Protection Clause was not a source of substantive rights and
because poverty did not qualify as a “suspect classification,” the Hyde Amendment did not
violate the Fifth Amendment. Finally, the Court held that the coincidence of the funding
restrictions of the statute with tenets of the Roman Catholic Church did not constitute an
establishment of religion.

1983 – City of Akron v. Akron Center for Reproductive Health, 462 US 416

The Supreme Court struck down all of the challenged provisions of an Akron, Ohio,
ordinance restricting abortion. Among other holdings, the Court ruled that the city could
not: require minors under 15 to obtain parental or judicial consent for an abortion; require
physicians to give women information designed to dissuade them from having abortions;
impose a 24-hour waiting period after the signing of the consent form; or require that all
second-trimester abortions be performed in a hospital.

1983 – Bolger v. Youngs Drug Products Corporation, 463 US 60

This case challenged a federal law that made it a crime to send unsolicited advertisements
for contraceptives through the mail. The Supreme Court held the law to be unconstitutional
because it violated the First Amendment’s protection of “commercial speech” and impeded
the transmission of information relevant to the “important social issues” of family planning
and the prevention of venereal disease.

1986 – Thornburgh v. American College of Obstetricians and Gynecologists, 476 US 747

The Supreme Court struck down, among other abortion restrictions, a provision of a
Pennsylvania statute requiring doctors to use abortion techniques that maximized the

chance of fetal survival, even when such techniques increased the medical risks to the
pregnant woman’s life or health.

1988 – Bowen v. Kendrick, 487 US 589

Plaintiffs who challenged the Adolescent Family Life Act, which authorized the use of
federal funds to teach the value of “chastity” in the context of social and educational
services for adolescents. Many of the grantees were religious organizations. The Court
rejected the claim that the Act, on its face, violated the First Amendment’s prohibition of
the establishment of religion. It sent the case back to a lower court to determine whether
the Act was unconstitutional as administered — whether actual grants made under the Act
were used impermissibly to promote religious views or to engage in religious practices.

1989 – Webster v. Reproductive Health Services, 492 US 490

The case was a challenge to a Missouri law that forbade the use of public facilities for all
abortions except those necessary to save a woman’s life, required physicians to perform
tests to determine the viability of fetuses after 20 weeks of gestation, and imposed other
restrictions on abortion. The Supreme Court upheld these anti-choice provisions, opening
the door to greater state regulation of abortion. The Court did not, however, accept the
invitation of the United States Solicitor General and others to use the case as a vehicle for
overruling Roe v. Wade.

1990 – Hodgson v. Minnesota, 497 US 417

This case was a challenge to a state law that required a minor to notify both biological
parents before having an abortion. It made no exception for parents who were divorced, who
had not married, or who were unknown to their daughters. The Court secured for teenagers
the option of going to court to obtain authorization for an abortion, when they could not or
would not comply with a parental notification law.

1991 – Rust v. Sullivan 500 US 173

Dr. Irving Rust and other family planning providers challenged the Reagan
Administration’s “gag rule” barring abortion counseling and referral by family planning
programs funded under Title X of the federal Public Health Service Act. Under the new
rule, clinic staff could no longer discuss all of the options available to women facing
unintended pregnancies, but could only refer them for prenatal care. Even though the rule
reversed 18 years of policies that had allowed non-directive, comprehensive options
counseling, the Court upheld it. (President Clinton rescinded the “gag rule” by executive
order shortly after his inauguration in 1993. In 2019, the U.S. Department of Health and
Human Services issued new gag rules that prohibit Title X grantees from providing or
referring patients for abortion, except in cases of rape, incest or medical emergency.
Planned Parenthood left the federal Title X family planning program rather than comply
with new Drump administration rules regarding abortion counseling.)

1992 – Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 US 833

This case was a challenge to a set of onerous restrictions on abortion enacted in
Pennsylvania. The Court preserved constitutional protection for the right to choose. But it
adopted a new and weaker test for evaluating restrictive abortion laws. Under the “undue
burden test,” state regulations can survive constitutional review so long as they do not
place a “substantial obstacle in the path of a woman seeking an abortion of a nonviable

1997 – Schenck v. Pro-Choice Network of Western New York, 519 U.S. 357

In this case, abortion clinics in western New York obtained injunctions as a remedy against
blockades and other disruptive forms of protest. The Supreme Court upheld a fixed 15-foot
buffer zone around clinic doorways, driveways, and parking lot entrances. It struck down a
floating 15-foot buffer zone around people or vehicles entering or leaving a clinic.

2000 – Stenberg v. Carhart (Carhart I), 530 U.S. 914

The Court was called to invalidate Nebraska’s so-called “partial-birth abortion” ban.
Sending a strong message regarding the paramount importance of women’s health, the
Court struck Nebraska’s law on two independent grounds: the ban’s failure to include a
health exception threatened women’s health, and the ban’s language encompassed the most
common method of second-trimester abortion, placing a substantial obstacle in the path of
women seeking abortions and thereby imposing an “undue burden.”

2001 – Ferguson v. City of Charleston, 532 U.S. 67

This case was about a South Carolina public hospital policy mandating drug testing of
pregnant women. In a 6-3 decision, the Court held that the Fourth Amendment does not
permit the state, acting without either a warrant or individualized suspicion, to drug test
pregnant women who seek prenatal care in a public hospital. Furthermore, the Court
insisted on the importance of confidentiality in the medical context.

2006 – Ayotte v. Planned Parenthood of Northern New England, 546 U.S. 320

In a unanimous ruling, the Court reiterated its long-standing principle that abortion
restrictions must include protections for women’s health. The case began as a challenge to a
New Hampshire law that required doctors to delay a teenager’s abortion until 48 hours
after a parent was notified, but lacked a medical emergency exception to protect a pregnant
teenager’s health. The lower courts struck down the law because of this omission. The
Supreme Court vacated and remanded the case, instructing the lower court to consider
whether the New Hampshire legislature would have wanted this law with a medical
emergency exception. If not, the Court said the law should be struck down in its entirety.
No matter what, the Court said the law must be blocked in those cases where teens face
medical emergencies.

2007 – Gonzales v. Carhart and Gonzales v. Planned Parenthood Federation of America,
Inc. (Carhart II), 127 S. Ct. 1610

Three legal challenges were brought against the ban, called the “Partial-Birth Abortion Ban
Act of 2003. In a 5-4 decision, the Court upheld the federal ban. The Supreme Court’s
decision upheld Congress’s ban and held that it did not impose an undue burden on the due
process right of women to obtain an abortion. It distinguished but did not overrule Stenberg
v. Carhart (2000), in which the Court dealt with related issues.

2016- Whole Women’s Health v. Cole – 579 U.S. ___

Petitioners claim a Texas law enacted in 2013 would force about 75 percent of the state’s
abortion services to close. Two provisions in the law require that doctors at clinics have
hospital admitting privileges within 30 miles of the clinics, and that clinics have facilities
equal to those of an outpatient surgical center. Texas officials believe the laws protect the
health of the women seeking abortions by guaranteeing better care.

The Supreme Court had to decide two issues. First, if the appeals court properly handled a
question about if the new restrictions would actually work to protect the health of women.
The appeals court said it needed to defer to the Texas state legislature on that issue. The
second question was whether the law imposed an undue burden on women who sought
abortions. The Court ruled 5-3 that Texas placed restrictions on the delivery of abortion
services that created an undue burden for women seeking an abortion. The provisions did
not offer medical benefits sufficient to justify the burdens upon access that the law imposed.

2018- National Institute of Family and Life Advocates v. Becerra – 585 US _ (2018)

The National Institute of Family and Life Advocates and two other religiously-affiliated
pro-life entities engaged in providing pregnancy-related services in the state of California
(collectively “NIFLA”) sought to enjoin the enforcement of the California Reproductive
Freedom, Accountability, Comprehensive Care, and Transparency Act (the “Act”). The law’s
stated purpose is to ensure access to reproductive health services for all California women,
regardless of income. NIFLA argued that the Act’s requirements that (1) licensed clinics
provide information to patients about free and low-cost publicly funded family planning
services, including contraception and abortion, and that (2) unlicensed clinics inform
patients of their unlicensed status violated their free speech and free exercise rights under
the First Amendment.In a 5-4 vote, the Court reversed and remanded, holding that the pro-
life pregnancy center petitioners were likely to succeed on their claim that the California
Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (the
“FACT Act” or the “Act”) violated the First Amendment.

2019 -Box v. Planned Parenthood of Indiana and Kentucky, Inc. – 587 US __

The Indiana legislature passed two laws at issue in this case. The first related to the
disposition of fetal remains by abortion providers. This law changed the definition of
infectious and pathological waste, thereby preventing abortion providers from incinerating
fetal remains with surgical byproducts. The law also authorized simultaneous cremation of
fetal remains, which Indiana law does not allow for human remains. The second provision

of Indiana law barred the knowing provision of sex-, race-, or disability-selective abortions
by abortion providers.

In a per curiam (unsigned) opinion issued without argument, the Court upheld an Indiana
law relating to the disposition of fetal remains as rationally related to a legitimate state
interest. Citing its decision in Akron v. Akron Center for Reproductive Health, Inc., 462
U.S. 416 (1983), the Court found that a state has a “legitimate interest in proper disposal of
fetal remains.” The Seventh Circuit therefore erred in reaching the opposite conclusion to
strike down the Indiana law. The Court then considered whether the challenged law is
rationally related to that interest, holding that it is. The Court pointed out that this case
does not present the substantive question whether Indiana’s law imposes an undue burden
on a woman’s right to obtain an abortion, and therefore it does not answer that question.

Because no other appellate court besides the Seventh Circuit had ruled on the second
question (whether another Indiana law that bars the knowing provision of sex-, race-, or
disability-selective abortions by abortion providers), the Court denied the petition as to that
question, effectively leaving in place the decision of the Seventh Circuit striking down that

June Medical Services LLC v. Gee Consolidated with: Gee v. June Medical Services LLC –
591 U.S. ___ (2020)

Issue: Whether the U.S. Court of Appeals for the 5th Circuit’s decision upholding
Louisiana’s law requiring physicians who perform abortions to have admitting privileges at
a local hospital conflicts with the Supreme Court’s binding precedent in Whole Woman’s
Health v. Hellerstedt.

Reversed. Plurality opinion by Breyer joined by Ginsburg, Sotomayor, and Kagan.
Reaffirmed standard in Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833
(1992) and Whole Woman’s Health v. Hellerstedt, 579 U.S. ___ (2016)—that courts must
conduct an independent review of the legislative findings given in support of an abortion-
related statute and weigh the law’s “asserted benefits against the burdens” it imposes on
abortion access. The Plurality found that the district court faithfully applied this standard.
The Fifth Circuit disagreed with the lower court, not as to the legal standard, but as to the
factual findings. However, an appeals court may not set aside findings of fact unless they
are “clearly erroneous,” which they were not in this case. Rather, the district court’s
findings had “ample evidentiary support” both as to burdens and as to benefits, so its legal
conclusion that the Louisiana law was unconstitutional was proper. Chief Justice John
Roberts concurred in the judgment, reasoning that because the Louisiana law was nearly
identical to the Texas law at issue in Whole Woman’s Health, under the principle of stare
decisis, the case was to be treated alike. However, he noted, that he disagreed with the
decision in Whole Woman’s Health at the time and continued to disagree with it.

Food and Drug Administration v. American College of Obstetricians and Gynecologists –
592 U. S. ____ (2021)

Issue: Whether the Supreme Court should stay, pending appeal, a nationwide injunction by
a federal district court in Maryland that prevents the FDA from enforcing requirements

that certain medical abortion drugs be distributed only under the supervision of a certified
healthcare provider in a hospital, clinic or medical office after a patient signs a form
acknowledging that she has been counseled about the drug’s risks, on the grounds that the
requirements pose an undue burden on abortion access under Planned Parenthood of
Southeastern Pennsylvania v. Casey during the COVID-19 pandemic.

Application for stay granted on Jan. 12, 2021. Justices Breyer, Sotomayor and Kagan would
deny the application. Chief Justice Roberts explained in his concurrence that the question
was not whether the government requirement imposed an undue burden on abortion, but,
rather, whether the federal judge properly ordered the requirement lifted because of his
own evaluation of the COVID-19 impact. He grated deference to the government on that
assessment. Sotomayor’s dissent, joined by Kagan, said the abortion drug mifepristone is
the only medication approved by the Food and Drug Administration that must be picked up
in person. The government had waived requirements for in-person pickups of other drugs
after the COVID-19 pandemic began; thus, the requirement is “an unnecessary,
unjustifiable, irrational and undue burden on women seeking an abortion during the
current pandemic.”



Maya Manian*

Coerced Sterilization of
Mexican-American Women: The
Story of Madrigal v. Quilligan

In 1973, twenty-three-year-old Consuelo Hermosillo arrived at the
Los Angeles County USC Medical Center in the midst of labor. In an
effort to persuade her to sign a consent form for sterilization, medical staff
claimed that she was “high risk” and could die from another pregnancy.1
While she endured labor pains and waited for a cesarean section to be
performed, a nurse told Hermosillo that her cesarean surgery would not
proceed until she consented in writing to a tubal ligation.2 Fearing that
her baby might die if she did not consent and unable to stand the pain
any longer, Hermosillo signed the consent form.3 She was so upset about
signing the form that she “said a bad word.”4 Years later, Hermosillo
described herself as “a bird who wants to fly and has had its wings cut.”5

Hermosillo’s experience was not anomalous. After a whistleblower
leaked evidence of rampant sterilization abuse at the Los Angeles County
USC Medical Center, nine other women joined Hermosillo in a lawsuit
alleging that medical personnel systematically coerced Mexican-

* Professor of Law, University of San Francisco School of Law. I am grateful to the

editors for including me in this volume. For helpful comments, I thank Khiara Bridges,
Serena Mayeri, Melissa Murray, Douglas NeJaime, Kate Shaw, Reva Siegel, Cilla Smith,
and participants at the University of San Francisco Law School Faculty Scholarship
Workshop and SMU Dedman Law School Faculty Forum. Thanks to Amy Wright for her
excellent services as research librarian.

1 Appellants’ Brief at 18, Madrigal v. Quilligan, 639 F.2d 789 (9th Cir. 1981) (No.
78-3187) (unpublished table opinion) (on file with the Stanford University Libraries
Department of Special Collections, M0673, Mexican American Legal Defense and
Educational Fund Records, RG#5, Series 2: Litigation Files, 1968–1982, Box 946, Folder 11)
[hereinafter Appellants’ Brief].

2 A tubal ligation—colloquially known as having one’s “tubes tied”—involves closing
a woman’s fallopian tubes in order to prevent future pregnancies. See Tubal Ligation, U.S.

3 Appellants’ Brief, supra note 1, at 18–19.
4 Id. at 19.
5 Trial Transcript at 19, Madrigal v. Quilligan, No. CV 75-2057-JWC (C.D. Cal.

June 30, 1978) (on file with the Stanford University Libraries Department of Special
Collections, M0673, Mexican American Legal Defense and Educational Fund Records,
RG#5, Series 2: Litigation Files, 1968–1982, Box 946, Folder 5).



American women into submitting to sterilization under similar
circumstances. The resulting case, Madrigal v. Quilligan, dramatically
altered public consciousness and public policy on coerced sterilization.

The long history of coerced sterilization in the United States has

been well documented. Scholars have shown that both public and private
actors targeted the poor, the disabled, and racial minorities, particularly
minority women, for coercive sterilization.6 In Buck v. Bell, the U.S.
Supreme Court legitimized early twentieth century eugenic sterilization
practices with Oliver Wendell Holmes’ notorious declaration: “Three
generations of imbeciles are enough.”7 It was not until Nazi Germany
adopted American eugenic theory and practice that public opinion about
eugenics ultimately shifted in the United States.8 The counter-movement
against eugenic sterilization culminated in the U.S. Supreme Court’s
1942 decision in Skinner v. Oklahoma.9 Although Skinner did not
explicitly overrule Buck v. Bell, it rejected eugenic sterilization as a valid
state goal and recognized that procreation “involves one of the basic civil
rights of man.”10

Yet Skinner did not lead to the end of forced sterilization in the
United States. Although support for eugenics-based sterilization laws
waned, new justifications for coerced sterilization arose. Following World
War II, concerns about population control, immigration, and welfare costs
emerged as new rationales for targeting marginalized populations for
sterilization. As historian Virginia Espino argues, in the 1960s, federal
family planning funding ushered in a new era of neo-eugenics in which
medical personnel would obtain signed consent forms using coercion
tactics aimed at poor patients, especially women of color.11 Thus, the
influx of federal family planning funds in the 1960s and 1970s both
increased access to reproductive health care and increased abusive
sterilization practices.12 Poor women simultaneously benefited from
affordable means of fertility control and were subject to coerced fertility


7 274 U.S. 200, 207 (1927).

9 316 U.S. 535 (1942).
10 Skinner, 316 U.S. at 541. Critically, however, the Skinner court explicitly linked

procreative rights to marital arrangements.
11 Virginia Espino, Women Sterilized as They Give Birth: Forced Sterilization and

the Chicana Resistance in the 1970s, in LAS OBRERAS: CHICANA POLITICS OF WORK AND
FAMILY 65–82 (Vicki Ruiz & Chon Moriega eds., 2000).

12 See Lisa C. Ikemoto, Infertile by Force and Federal Complicity: The Story of Relf
v. Weinberger, in WOMEN AND THE LAW STORIES 189–191 (Elizabeth M. Schneider &
Stephanie M. Wildman eds., 2011).

ABORTION IN PUBLIC HEALTH AND WELFARE 3 (2005) (describing the “double-edged


Women of color were particularly at risk for sterilization abuse, with
each geographic region of the United States having its own disfavored
group.14 A 1970 National Fertility Study found that twenty percent of all
married black women and roughly the same percentage of all Chicana
women had been sterilized; over thirty-five percent of women of
childbearing age in Puerto Rico had been sterilized.15 In California,
Mexican-American women were the group most prominently targeted for
sterilization.16 California had an especially checkered history of
compulsory sterilization. In 1909, it became the third state to adopt laws
authorizing the sterilization of the “feeble-minded.”17 In her history of
eugenics in the United States, Alexandra Minna Stern found that
California accounted for one third of the sixty thousand nonconsensual
sterilizations performed nationwide in the early twentieth century.18
Stern discovered that long before the allegations of sterilization abuse in
Madrigal v. Quilligan, a disproportionate number of patients with
Spanish surnames suffered forced sterilization at California
institutions.19 As she explains, ideological notions of Mexican-American
women as hyper-fertile often drove these eugenic sterilization practices.20
Sociologist Elena Gutierrez argues that coerced sterilization of Mexican-
origin women in 1970s California resulted from a perfect storm of post-
World War II fears about population growth combined with historic racial
prejudices against Mexican Americans, as well as a huge influx of federal
dollars for family planning.21 Thus, Madrigal v. Quilligan is not only a
story about coerced sterilization in the 1970s era, but should also be
viewed as “an important link on a longer chain of eugenics and
reproductive injustice in California that reaches back to the 1900s and
forward to the twenty-first century.”22

application of reproductive technologies” which “could extend reproductive control to
women, or they could be used to control women’s reproduction.”).

14 See Ikemoto, supra note 12, at 196 (noting that sterilization abuse was occurring
around the country in the 1960s and 1970s with African American, Chicana, Native
American, Puerto Rican, and poor white women all targeted depending on the region).

16 In this chapter, I use the terms Mexican American, Mexican origin, or Chicana/o

17 Buck v. Bell, 274 U.S. 200, 205 (1927).
18 See Alexandra Minna Stern, Sterilized in the Name of Public Health: Race,

Immigration, and Reproductive Control in Modern California, 95 AMER. J. PUB. HEALTH

19 See id. at 109–110.
20 See id. at 110.

WOMEN’S REPRODUCTION 2–13; 29–54 (2008).
22 See STERN, EUGENIC NATION, supra note 18, at 223 (noting that Madrigal is most

often viewed as an illustration of incidents of forced sterilization in the 1960s and 1970s
rather than as a crucial “link” in the long history of coerced sterilization).



The Los Angeles County USC Medical Center (“Medical Center”)—

famous in the 1970s as the setting for the soap opera General Hospital23—
operated an overwhelmingly busy maternity ward serving largely low-
income and immigrant populations. Dr. Bernard “Buddy” Rosenfeld, a
young resident working at the Medical Center in the early 1970s, blew
the whistle on widespread sterilization abuse on the maternity ward.
Rosenfeld believed that women of Mexican origin were being sterilized
without their knowledge or consent. Determined to bring these abuses to
light, he surreptitiously copied medical records for hundreds of
sterilizations at the Medical Center. After his shifts, he spent hours
typing letters to journalists, civil rights groups, and government officials
in the hopes of spurring legal action.24 Rosenfeld later estimated that
while he was at the Medical Center, “between 20 to 30 percent of the
doctors pushed sterilization on women who either did not understand
what was happening to them or who had not been given the facts
regarding their options.”25

Eventually, Rosenfeld’s efforts paid off. Twenty-six-year-old Antonia
Hernández, a recent UCLA law school graduate, and twenty-nine-year-
old Charles Nabarrete, both Mexican-American attorneys at the nearby
Model Cities Center for Law and Justice, took on the case.26 Hernández
grew up on the east side of Los Angeles in a predominantly Mexican-
American community.27 Hernández and Nabarrete joined with the
Chicana feminist organization Comisión Feminil to mount a class action
lawsuit against the U.S. Department of Health, Education, and Welfare
(HEW), the California State Department of Health, and the individual
doctors who had performed or supervised the sterilizations, including the
head of the obstetrics department, Dr. Edward J. Quilligan.28 Hernández
followed up on the medical files that Rosenfeld provided, tracking down

23 See Los Angeles County + USC Medical Center, L.A. Conservancy, (last visited Mar. 1, 2018).
24 See Renee Tajima-Peña, “Más Bebés?”: An Investigation of the Sterilization of

Mexican-American Women at Los Angeles County-USC Medical Center During the 1960s
and 70s, THE SCHOLAR AND FEMINIST ONLINE, (Summer 2013), available at: http://sfonline.
-the-1960s-and-70s/, at 2; see also Marcela Valdes, When Doctors Took ‘Family Planning’
Into Their Own Hands, N.Y. TIMES MAG. (Feb. 1, 2016),

25 See Carlos G. Velez-Ibanez, The Nonconsenting Sterilization of Mexican Women
in Los Angeles: Issues of Psychocultural Rupture and Legal Redress in Paternalistic
Behavioral Environments, in TWICE A MINORITY: MEXICAN AMERICAN WOMEN 239
(Margarita B. Melville ed., 1980) (citation omitted).

26 A third lawyer, Georgina Torres-Rizk, also worked on the case until just before
the trial for money damages. See GUTIERREZ, supra note 21, at 45 n.60.

27 See Tajima-Peña, supra note 24, at 2.
28 The federal district court eventually denied class certification, but proceeded with

the injunctive relief and damages claims for the ten named plaintiffs. See Appellants’ Brief,
supra note 1, at 1.


the women listed in the medical records all over the east side of Los
Angeles. As Hernández later recounted:

I must have interviewed a hundred women . . . . [a]nd then I had
the difficult job of saying to many of the women, ‘Do you know
you were sterilized?’ It was a very painful process. And some of
them knew, but they all had the misconception that their tubes
were tied but could be untied.29
Gloria Molina, who led the Comisión Feminil at the time, assisted

the attorneys by offering her organization as a class plaintiff in the case.30
Hernandez faced the challenging task of finding and convincing
individual women to become lead plaintiffs in the lawsuit. Many of the
women felt deep shame over what happened to them and feared going
public with such a private matter. At first, Consuelo Hermosillo wanted
nothing to do with a public court case. She and her husband did not even
discuss the coerced sterilization with each other, much less with anyone
else. Hermosillo joined the suit as a plaintiff only after seeing the
evidence that Rosenfeld gathered. Without telling her husband or
children, she secretly rode the bus alone to the courthouse in the hope
that the case would protect other women from what she had suffered.31

Ultimately, the lawyers convinced ten women to file a lawsuit:
Guadalupe Acosta, Estella Benavides, Maria Figueroa, Rebecca
Figueroa, Consuelo Hermosillo, Georgina Hernández, Maria Hurtado,
Dolores Madrigal, Helena Orozco, and Jovita Rivera. None of the women
were receiving federal welfare benefits at the time, but all were eligible
for medical assistance at the federally-funded Medical Center.32 The
“Madrigal Ten” alleged that doctors at the Medical Center coercively
sterilized each of them between June 1971 and March 1974. Their suit
sought injunctive relief to strengthen federal and state policies on
informed consent to sterilization, as well as money damages for the
injuries the women suffered.33 The Madrigal Ten’s stories exposed
common patterns in the ways Medical Center staff coerced Mexican-
American women into undergoing sterilization procedures. All of the ten
cases involved women whose primary language was Spanish and who had
undergone a tubal ligation after childbirth by cesarean section. Nurses
and physicians used multiple tactics to exploit the fact that the women
had limited English language skills and were seeking medical care for

29 GUTIERREZ, supra note 21, at 35–36.
30 See Letter from Judge Michael L. Stern, August 29, 2018 (on file with author).
31 See Valdes, supra note 24.
32 GUTIERREZ, supra note 21, at 43–44.
33 Complaint at 1–2, Madrigal v. Quilligan, No. CV-75-2057 (C.D. Cal. June 30,

1978) (on file with the Stanford University Libraries Department of Special Collections,
M0673, Mexican American Legal Defense and Educational Fund Records, RG#5, Series 2:
Litigation Files, 1968–1982, Box 945, Folder 3) [hereinafter Complaint].



First, all of the women were approached for consent to sterilization
while in the midst of labor—some after being heavily medicated—and
were pressured into signing English language consent forms that they
could not understand. Maria Hurtado arrived at the Medical Center for a
routine checkup that turned into an emergency cesarean delivery.
Hurtado was given a consent form to sign without any explanation while
she was medicated for labor pains. She signed the forms believing that
she was consenting to the cesarean surgery. She underwent a tubal
ligation following the delivery of her child, but did not learn that she was
irreversibly sterilized until six weeks later when she appeared for a
routine follow up appointment.34 Similarly, Rebecca Figueroa arrived at
the Medical Center for an emergency cesarean delivery due to blood
loss.35 Just before being taken to the operating room, she signed two
English language consent forms that she could not read, also believing
that she was consenting to cesarean surgery.36

Second, many of the women faced multiple requests by various
Medical Center staff to submit to sterilization. Medical Center personnel
repeatedly approached and urged Helena Orozco to consent to
sterilization. Orozco refused on the ground that she preferred to use birth
control pills, as she had done in planning for her current pregnancy.37
Weak and confused from sharp labor pains, Orozco was crying when she
finally capitulated and signed the sterilization consent form in order to
stop the Medical Center staff’s relentless entreaties.38 Orozco later
explained: “I just wanted them to leave me alone, sign the papers and get
it over with . . . . I was in pain on the table when they were asking me all
those questions.”39 Georgina Hernández arrived at the hospital bleeding
and experiencing labor pains.40 Medical Center staff pressed her to
consent to sterilization at the time of her admission, but she refused. As
her labor progressed, the doctors informed her that a cesarean delivery
was necessary. Despite her documented refusal, while in labor and about
to undergo an emergency cesarean section, the doctor again asked her
about having her “tubes tied.”41 Hernández alleged that the doctor told
her that Mexican people were very poor and cautioned her not to have
any more children because she could not provide financial support for

34 Id. at 9; Appellants’ Brief, supra note 1, at 20. See also Antonia Hernández,

Chicanas and the Issue of Involuntary Sterilization: Reforms Needed to Protect Informed
Consent, 3 CHICANO L. REV. 3, 4–9 (1976) (summarizing plaintiffs’ affidavits).

35 Complaint, supra note 33, at 13.
36 Appellants’ Brief, supra note 1, at 20.
37 Complaint, supra note 33, at 10.
38 Id. at 11; Appellants’ Brief, supra note 1, at 18.
39 GUTIERREZ, supra note 21, at 42.
40 Complaint, supra note 33, at 12; see also Madrigal v. Quilligan, No. CV 75-2057-

JWC at 14–15 (C.D. Cal. June 30, 1978) (on file with the Stanford University Libraries
Department of Special Collections, M0673, Mexican American Legal Defense and
Educational Fund Records, RG#5, Series 2: Litigation Files, 1968–1982, Box 945, Folder 2)
[hereinafter Opinion].

41 Opinion, supra note 40, at 15.


them.42 She again refused and only signed a consent for the cesarean
operation. Shortly before going inside the operating room, the doctor
asserted that Hernández agreed to be sterilized and noted her consent in
her file.43 Hernández later recalled: “And this lady came, I don’t
remember seeing her face, I just remember her voice telling me, ‘Mijita,
you better sign those papers or your baby could probably die here.’ ”44
Hernández only learned that she had been permanently sterilized three
weeks later at her post-delivery examination.45

Third, in addition to being repeatedly presented with English
language sterilization consent forms in the midst of labor pains, many of
the women lacked accurate information about the need for and
consequences of a tubal ligation. Dolores Madrigal was admitted to the
Medical Center for delivery of her second child. She rebuffed multiple
suggestions by the nurse and physician that she submit to sterilization.
Under the severe pain of labor, and after overhearing the nurse tell her
husband that she would die if she had another child, Madrigal signed the
consent form out of fear, even though she could not read its contents. Like
many of the women, Madrigal also believed the procedure was
reversible—that if her tubes were tied they could be untied.46 Estella
Benavides was similarly pressured into signing a consent form during
labor based on the assertion that another pregnancy would kill her.
Afraid for her life and fearing to leave her children without her support,
she signed the consent form.47 Benavides subsequently explained that in
her pain she was not thinking about whether the operation would render
her permanently sterile: “[I was] not thinking of anything since the
doctors had told me that they were protecting me. The only thing I was
thinking about was about my girls . . . .”48 In an effort to persuade them
to consent to sterilization, several of the women were also falsely told that
California does not permit more than three cesarean sections to be
performed on a woman.49

Finally, some of the women never even signed a consent form for
sterilization. Instead, the physician waived consent based on asserted
exigent circumstances. Maria Figueroa was approached while groggy
from anesthesia in the delivery room. Figueroa stated that the doctor was
“after me, after me” to consent.50 Finally, in order to silence the doctor’s
insistence, Figueroa agreed to a tubal ligation if the baby was a boy. The
physician delivered a baby girl, but nevertheless proceeded to sterilize
Figueroa. Figueroa never signed any forms indicating her consent to a

42 Id.
43 See id.
44 Tajima-Peña, supra note 24, at 1.
45 Complaint, supra note 33, at 12.
46 Id. at 8.
47 Id. at 13.
48 Appellants’ Brief, supra note 1, at 19.
49 Id. at 14–15.
50 Id. at 16.



sterilization.51 Guadalupe Acosta’s child was born dead. She was also
sterilized after her cesarean surgery, and did not learn of her sterilization
until more than two months later when she returned to the Medical
Center to request birth control pills. Acosta never signed a consent form
for sterilization.52 While still anesthetized from the birth of her child by
cesarean, the physician asked Jovita Rivera whether she wanted
sterilization.53 She alleged that the physician told her she should be
sterilized because her children would be a burden on the government.54
Rivera had only a cloudy recollection of the events in the operating room,
but thought the procedure was reversible. The physician asserted that
Rivera verbally consented to the procedure, but she never signed a
consent form. Neither the physician nor any other staff informed Rivera
that she would be irreversibly sterilized.55


The Madrigal Ten filed their lawsuit in June 1975 and launched
their pursuit of injunctive relief to toughen federal and state policies
surrounding informed consent to sterilization. In their legal filings on
behalf of the women, Hernández and Nabarrete argued that the lack of
appropriate Spanish language consent forms and other safeguards to
protect against coerced sterilization resulted in violations of the women’s
constitutional right to procreate.56 In particular, the women’s attorneys
relied on Roe v. Wade to argue that the U.S. Constitution protects a
woman’s decision to bear a child.57 At that time, only two years after the
Roe decision, the dominant narrative around reproductive rights
concerned abortion rights. The Madrigal Ten’s lawyers sought a broader
conception of reproductive rights—one that encompassed the right to
choose an abortion and the right to give birth. The lawyers brought the
still-nascent framework of reproductive justice to bear on the case,
incorporating concerns about discrimination along intersectional lines of
gender, race, poverty, and immigration status—all issues at play in the
Madrigal case.58

51 Complaint, supra note 33, at 10; Appellants’ Brief, supra note 1, at 17 (noting that

the physician in fact attempted to have the consent formed signed after the sterilization
procedure had been performed).

52 Complaint, supra note 33, at 11; Appellants’ Brief, supra note 1, at 21–23
(explaining that Acosta was at no point asked to consent to tubal ligation).

53 Appellants’ Brief, supra note 1, at 11.
54 Complaint, supra note 33, at 9.
55 Id.
56 Complaint, supra note 33, at 1–3. The Complaint did not assert claims for

violation of the tort law doctrine of informed consent.
57 410 U.S. 113 (1973); Complaint, supra note 33, at 17 (also relying on Griswold v.

Connecticut, 381 U.S. 479 (1965) and Skinner v. Oklahoma, 316 U.S. 535 (1942)).
58 See Dorothy Roberts, Reproductive Justice, Not Just Rights, DISSENT MAG. (Fall

2015), available at
rights (“ ‘[R]eproductive justice’ . . . [is] a framework that includes not only a woman’s right
not to have a child, but also the right to have children and to raise them with dignity in


The First Phase—Feminist Movement Tensions
over Strengthening Sterilization Regulations

The first phase of the Madrigal litigation—focusing on injunctive
relief that would strengthen sterilization consent policies—resulted in
victory for the women.59 However, the Chicana activists working on the
Madrigal matter did not confine their efforts to secure stronger
sterilization policies to litigation. Instead, they used multiple strategies
to achieve their policy goals. They lobbied for legislative reform and
engaged in public education, including generating widespread media
attention for their cause.60

Critically, the Madrigal case galvanized Chicana feminist activism
in ways that highlighted tensions between mainstream white feminists
and women of color. In the 1960s and 1970s, white feminist groups
focusing on reproductive rights emphasized the right not to become a
parent, but women of color during this same time period began fighting
for a broader conception of reproductive justice.61 While white feminist
activists argued for unimpeded access to sterilization, contraception, and
abortion, women of color sought to expand the discussion of reproductive
rights to include their concerns about abusive practices designed to
restrict racial minority women’s reproduction.62 Historically, birth
control activists like Margaret Sanger often cast access to contraception
as a form of “negative eugenics” that would allow those in power to control
the birth rates of “less desirable classes,” particularly communities of

In 1977, as part of the Madrigal litigation, when Chicana feminist
groups pushed the California Department of Health to require a waiting
period prior to sterilization procedures, white feminist groups resisted.
Comisión Feminil attempted to sway the California chapter of the
National Organization for Women (NOW) to support sterilization waiting
periods, but to no avail. NOW was concerned that waiting periods would
be used to deny sterilizations to women who wanted them.64 Board
members from Comisión Feminil presented information about the
Madrigal Ten to the NOW board, yet NOW never modified its stance:

safe, healthy, and supportive environments. This framework repositioned reproductive
rights in a political context of intersecting race, gender, and class oppressions.”).

59 See GUTIERREZ, supra note 21, at 50.
60 Id. at 95, 98–99.

MOVEMENT 4–5 (2003); see Khiara M. Bridges, Elision and Erasure: Race, Class, and Gender
in Harris v. McRae, in REPRODUCTIVE RIGHTS AND JUSTICE STORIES ___ (Murray, Shaw, &
Siegel, eds. 2019) (describing anti-sterilization abuse activism of CARASA, the Committee
for Abortion Rights and Against Sterilization Abuse).

MEANING OF LIBERTY 57–103 (1999).

63 Id. at 74–75; see also DAVIS, supra note 15, at 212–215 (describing Margaret
Sanger and the American Birth Control League’s approval of the eugenics movement).

64 GUTIERREZ, supra note 21, at 104.



We [Comisión Feminil] were trying to get support of the other
women’s organizations, feminist organizations, and I think we
were also a little surprised that the support we just assumed
would be there because we were all struggling for women’s
rights wasn’t there . . . . We found quickly that NOW was the
group that said, “No, when we go in and want sterilization
procedures, we don’t want to wait 48 hours, we want it on
demand.” But . . . [w]omen were being sterilized without their
consent, consent forms being shoved in front of them in the
middle of labor, in English, a language they didn’t understand
and read, and they [NOW] were just totally against that process
[of waiting periods].65

Despite resistance from white feminist groups, Chicana feminists
organized against “sterilization abuse”—a term coined by women of color
fighting lax sterilization regulations—won policy changes at both the
federal and state levels through both litigation and lobbying efforts.66
Ultimately, the Madrigal trial judge, U.S. District Judge E. Avery Crary,
granted a preliminary injunction against the California Department of
Health. He ordered state health officials to rewrite Spanish language
sterilization consent forms to a sixth grade educational level.67 The
Medical Center’s own hospital study found that 45% of its Mexican-
American patients read at a sixth-grade level, yet the sterilization
consent forms at the time were written at a twelfth-grade reading level.68
Later, state regulations were amended to add a seventy-two hour waiting
period prior to sterilization procedures, in large part based on input from
Chicana feminist groups working on the Madrigal case.69

In the midst of the Madrigal litigation, the U.S. Department of
Health, Education and Welfare (HEW) issued new guidelines requiring
hospitals receiving federal funds to have bilingual consent forms and a
monitoring program to ensure compliance with the new regulations.70 At
the time, HEW paid for approximately 100,000 to 150,000 sterilizations
of low income women each year. Another infamous 1970s sterilization
abuse case—Relf v. Weinberger—prompted changes in the HEW
sterilization regulations.71 Relf involved the forced sterilization of two
African-American sisters, only twelve and fourteen years old, who were
sterilized by a federally-funded family planning clinic in Alabama. Mrs.
Relf signed an “X” on a consent form she could not read, discovering too

65 Id. at 104–05.
66 Id. at 94–108.
67 See Robert Rawitch, State Enjoined in Sterilization Suit Filed by Women, L.A.

TIMES, Oct. 7, 1975, at B1.
68 See id.
69 See GUTIERREZ, supra note 21, at 106–08 (describing how the lobbying and public

education efforts of the Chicana feminist activists helped shape the new sterilization

70 See Rawitch, supra note 67.
71 Relf v. Weinberger, 372 F. Supp. 1196 (D.D.C. 1974).


late that she had inadvertently “consented” to the permanent
sterilization of her daughters Mary Alice and Minnie Relf.72 According to
the Southern Poverty Law Center, which filed the Relf lawsuit, poor
women “were forced to agree to be sterilized when doctors threatened to
terminate their welfare benefits unless they consented to the
procedures.”73 The Relf plaintiffs asserted that by funding sterilization
without sufficient regulations to protect patient autonomy, the federal
government had effectively authorized coerced sterilization. The trial
judge in Relf, Judge Gerhard Gesell, concluded that “an indefinite
number of poor people have been improperly coerced into accepting a
sterilization operation.”74 As in Madrigal, Judge Gesell found that
patients seeking medical care for childbirth were frequently targets for
coerced sterilization. For example, he noted in the opinion that one
woman “was actually refused medical assistance by her attending
physician unless she submitted to a tubal ligation after the birth.”75 In
1978, HEW promulgated even more stringent regulations that finally
resolved the Relf litigation.76

In October 1976, Judge Crary signed off on a settlement agreement
between the Madrigal plaintiffs and the California Department of
Health, approving California’s enhanced sterilization consent
requirements.77 After winning the preliminary injunction against
California, Nabarrete declared that except for the question of financial
damages, “we’ve won everything we asked for.”78 Ultimately, the
litigation pursued by the Madrigal Ten and the Relf sisters helped to spur
more demanding procedures for consent to sterilization at the federal and
state levels.79

The Second Phase—Compensation for the Madrigal Ten
Judge Crary’s rulings granting the women’s claims for injunctive

relief ultimately resolved all of the legal issues except for the question of
financial compensation for the ten named plaintiffs. When Judge Crary
died in April 1978, the damages phase of the Madrigal case was
transferred to U.S. District Court Judge Jesse W. Curtis, who scheduled

72 See Ikemoto, supra note 12, at 179–206.
73 Valdes, supra note 24.
74 Relf, 372 F. Supp. at 1199.
75 Id.
76 Ikemoto, supra note 12, at 201.
77 Stipulation for Judgment Between Plaintiffs and Defendants Obledo and Lackner,

No. CV 75-2057 (C.D. Cal. June 30, 1978) (on file with the Stanford University Libraries
Department of Special Collections, M0673, Mexican American Legal Defense and
Educational Fund Records, RG#5, Series 2: Litigation Files, 1968–1982, Box 944, Folder 8).

78 Rawitch, supra note 67.
79 See Hospitals Challenge Sterilization Rules, L.A. TIMES, Feb. 9, 1977, at E20A

(noting that the Madrigal and Relf cases prompted California to enact legislation requiring
a fourteen-day waiting period before sterilization on patients paying with private insurance
as well as with Medicaid).



testimony on the damages trial to begin May 30, 1978.80 Judge Curtis, a
seventy-year-old Nixon appointee, lived aboard his yacht in the upscale
Newport Beach area.81 The judge and the defendants’ lawyers, who hailed
from a prestigious Beverly Hills law firm and were “the best that money
could buy,” presented a stark cultural contrast to the Mexican-American
lawyers and their clients.82

At the trial, each woman testified in Spanish about the
circumstances surrounding her sterilization. In presenting their
testimony to the court, Hernández and Nabarrete argued that together,
the women’s stories demonstrated a systemic practice of doctors coercing
sterilization of Mexican-American women for “social reasons.”83
Hernández asserted that the doctors forced laboring Mexican-American
women to have tubal ligations, based on the doctors’ beliefs that
sterilization would remedy overpopulation of racial groups who “tended
toward having large families.”84

Karen Benker’s testimony was critical to Hernández’ claim that
racial discrimination motivated coercive practices at the Medical Center.
At the time, Benker was a medical student and a firsthand witness to
what was happening on the maternity ward. She testified about what she
viewed as the Medical Center’s concerted effort to reduce the birth rate of
racial minorities. In her testimony, she recounted her first day of
orientation on the obstetrics ward, when she met Dr. Quilligan in the
hallway. She recalled Dr. Quilligan explaining that the department had
recently received a federal grant “to show how low we can cut the birth
rate of the Negro and Mexican populations in Los Angeles County.”85 She
described an entrenched system of abusive practices animated by the
stereotype of Mexican-American women as hyper-fertile. On the stand,
Benker detailed the coercive practices she witnessed at the Medical
Center almost daily:

The doctor would hold a syringe in front of the mother who was
in labor pain and ask her if she wanted a pain killer; while the
woman was in the throes of a contraction the doctor would say,
‘Do you want the pain killer? Then sign the papers. Do you want

80 See Narda Zacchino, Trial Hears Handwriting Expert: Sterilized Women Were

‘Troubled,’ Court Told, L.A. TIMES, June 15, 1978, at B30. The plaintiffs were denied their
request for a jury trial for technical reasons; thus the case proceeded as a bench trial. See
Brief Amici Curiae of the Reproductive Freedom Project of the ACLU Foundation and the
ACLU Foundation of Southern California at 21–24 (on file with the Stanford University
Libraries Department of Special Collections, M0673, Mexican American Legal Defense and
Educational Fund Records, RG#5, Series 2: Litigation Files, 1968–1982, Box 946, Folder

81 See Velez-Ibanez, supra note 25, at 244.
82 See id. at 242–44.
83 GUTIERREZ, supra note 21, at 1.
84 See id. at 45.
85 Id. at 45.


the pain to stop? Do you want to have to go through this again?
Sign the papers.’86
Reacting to Benker’s testimony, Judge Curtis dismissed as

irrelevant the doctors’ social motivations for pressuring racial minority
women to undergo sterilization:

I do not think it is surprising that you might find a doctor who
believes that people who are inclined to have big families
shouldn’t, and particularly for good medical reasons,
undertakes to persuade a person not to have a large family. And
if that person agrees and is willing to be sterilized, then I cannot
see anything wrong with the doctor having suggested it or
having convinced the patient . . . . What I want to know here is:
To what extent the doctors had overridden the wishes of the
patients, if they had. And if they have in some instances, what
is their medical justification for doing it?87
In addition to Benker, Hernández and Nabarrete called a number of

expert witnesses on behalf of the Madrigal Ten. Dr. Don Sloan, a New
York gynecologist-obstetrician, testified that a woman in advanced labor
could not give informed consent for a sterilization operation under those
stressful circumstances.88 In contrast to what Judge Curtis later claimed
in his opinion, the lawyers were not arguing that a laboring woman could
never consent to surgery. Rather, they emphasized that given the overall
context—including the stress of active labor, language barriers, and lack
of prior information about the procedure—the physicians in Madrigal
failed to take adequate care to ensure their patients had actually
consented.89 A handwriting expert also testified about his comparison of
the women’s signatures on forms signed shortly after they were admitted
with signatures on their sterilization consent forms signed later. He
found a dramatic change in the handwriting, indicating that the women
were troubled or in pain when they signed the consent to sterilization.90

The most controversial expert testimony came from Carlos Velez-
Ibanez, a cultural anthropologist hired as a consultant to the trial team.
Velez-Ibanez testified as to the harms caused by the coerced
sterilizations—and particularly, the emotional strain that sterilization
had wrought in the lives of the Madrigal Ten.91 After conducting a field
study with the women, Velez-Ibanez found deteriorated relationships

86 Id. at 41.
87 Id. at 46–47.
88 See Narda Zacchino, 10 Women Will Appeal Ruling on Sterilization, L.A. TIMES,

July 8, 1978, at A26.
89 See Reply-Brief of Plaintiffs-Appellants at 7–8, Madrigal v. Quilligan, 639 F.2d

789 (9th Cir. 1981) (No. 78-3187) (unpublished table opinion) (on file with the Stanford
University Libraries Department of Special Collections, M0673, Mexican American Legal
Defense and Educational Fund Records, RG#5, Series 2: Litigation Files, 1968–1982, Box
945, Folder 4).

90 See Zacchino, supra note 80.
91 See Velez-Ibanez, supra note 25, at 244–45 (describing the trial proceedings).



between the women and their husbands in most of the cases, as well as
increased aggression and dysfunction between the women and their
children. Most of the women did not share the fact of their coerced
sterilization with family or friends and often withdrew from important
social relations because of shame over their lack of fertility.92 Velez-
Ibanez presented his findings to the court, describing the pain endured
by the women: “For each woman her sense of continuity with the past had
been fractured, her sense of self-worth had been shattered, self-blame had
been internalized, and a new social identity of impotence had been
generated. . . . The final effect was acute depression.”93 As a cultural
anthropologist, Velez-Ibanez aimed to explain the significance of fertility
in the plaintiffs’ culture, and to show that the Madrigal Ten’s coerced
sterilization caused “severe psychocultural and social results even beyond
those expected of other women in the United States.”94 Judge Curtis
initially considered excluding Velez-Ibanez’ testimony. According to
Velez-Ibanez, Curtis remarked from the bench that he did not see how an
anthropologist’s testimony would bear on damages because, “We all know
that Mexicans love their families.”95

In an unpublished opinion, Curtis ruled against the Madrigal Ten.
Curtis failed to see how the case as a whole exposed a broader pattern of
abuse at the Medical Center based on gender, race, and class. Instead,
Curtis viewed the case as ten distinct random occurrences. The opinion
recited each woman’s story seriatim, concluding in each case that the
attending physician had a “bona fide” or “good faith” belief that the
patient consented based simply on a signed consent form or other medical
documentation.96 Curtis disregarded the high-pressure circumstances
under which each woman’s consent was obtained. In the opinion, Curtis
also adopted a disdainful tone towards Hernández and Nabarrete’s
primary legal argument that the hospital had specifically targeted
Mexican-American women’s reproduction, rejecting outright the idea of a
“concerted plan by hospital attendants and doctors to push them, as
members of a low socio-economic group . . . to consent to sterilization in
order to accomplish some sinister, invidious, social purpose.”97

Strikingly, Curtis’s opinion did not dispute much of the extensive
evidence of abuse presented by Hernández and Nabarrete at trial.
Nevertheless, Curtis concluded that the women’s fundamental rights to
procreate were not violated. Curtis credited the physicians’ testimony
that, generally speaking, they would not perform a sterilization
procedure on a patient without her consent. Instead of questioning
whether the coercive circumstances by which consent was obtained

92 See id. at 241–42.
93 Id. at 242.
94 Id. at 235.
95 Id. at 244.
96 Opinion, supra note 40, at 9–18.
97 Id. at 3.


undermined the validity of the consent forms, Curtis found satisfactory
the physicians’ testimony that it was their “custom and practice” to only
perform sterilization procedures when “certain in their own mind that the
patient understood the nature of the operation and was requesting the

For example, in discussing Dolores Madrigal’s sterilization, Curtis
acknowledged that Madrigal refused the staff’s urging to submit to
sterilization several times prior to the operation.99 Curtis credited
Madrigal’s account that, while she was in the midst of labor pains and
after she had already indicated that she did not want a tubal ligation, the
Medical Center staff called in her husband to consent to her sterilization.
The opinion also affirmed that Madrigal overheard an interpreter telling
her husband that she might die in the event of a future pregnancy.
Finally, Curtis noted that hospital staff then told Madrigal that her
husband had agreed to the operation and again insisted that she sign the
consent form.100 Despite these coercive conditions, Curtis concluded that
the physician who performed the surgery properly relied on the signed
form to support his “bona fide belief that Mrs. Madrigal had given her
informed and voluntary consent, and that his belief was reasonable.”101
Curtis’ analysis of each woman’s story follows this same line of reasoning,
accepting each physician’s claim of a “custom and practice” of relying on
documentation for consent.102

Curtis summarized the case as “essentially the result of a breakdown
in communications between the patients and the doctors.”103 He
recognized that the women’s ability to understand and speak English was
“limited,” but nevertheless found it sufficient that the physicians had
acquired enough familiarity with Spanish “to get by.”104 The opinion
stressed that even with the availability of interpreters,
“misunderstandings are bound to occur.”105 Yet Curtis never recognized
that, given the great likelihood of misinformation in these circumstances,
clinicians should bear the burden of ensuring effective informed consent,
especially with the fundamental right to procreate at stake. Instead,
Curtis placed the burden of communicating consent on the patients,
rather than on the physicians performing the sterilization:

There is no doubt that these women have suffered severe
emotional and physical stress because of these operations. One
can sympathize with them for their inability to communicate
clearly, but one can hardly blame the doctors for relying on

98 Id. at 8.
99 Id. at 9.
100 See id.
101 Id. at 10.
102 Id. at 9–18.
103 Id. at 6.
104 Id.
105 Id.



these indicia of consent which appeared to be unequivocal on
their face and which are in constant use in the Medical

In an inversion of its intended purpose, Curtis treated the sterilization
consent form as a shield against physician liability rather than as a
means to protect patient autonomy.107

Finally, Curtis dismissed the testimony of Carlos Velez-Ibanez
regarding the harmful impact of coerced sterilization on the women, and,
in fact, used that testimony to undermine the women’s claims. Curtis
noted that Velez-Ibanez needed a significant amount of time to conduct
his study, which found that reproductive capacity was particularly
important to women from small rural communities in Mexico. Curtis then
asserted that “the staff of a busy metropolitan hospital which has neither
the time nor the staff to make such esoteric studies would be unaware of
these atypical cultural traits.”108 As Velez-Ibanez later commented, “it is
ironic that the very evidence used to illustrate the damages done to the
social and cultural systems of these women was, in fact, partially used by
the court to rationalize a decision against them.”109

Judge Curtis’ analysis in Madrigal contrasts sharply with Judge
Gesell’s decision in the Relf case. Curtis’ crabbed conception of consent
defined voluntary consent to sterilization as a mere formality—as long as
some indicia of consent was documented, clinicians need not ensure that
voluntary consent actually existed in substance. In comparison, Judge
Gesell emphasized that true consent must be “voluntary in the full sense
of that term.”110 Noting that “[e]ven its dictionary definition assumes an
exercise of free will and clearly precludes the existence of coercion,” Gesell
emphasized that “when important human rights are at stake, [voluntary
consent] entails a requirement that the individual have at his disposal
the information necessary to make his decision and the mental
competence to appreciate the significance of that information.”111
Stressing that “[t]he dividing line between family planning and eugenics
is murky,” Gesell demanded more stringent sterilization consent
procedures precisely to prevent express or implied threats by doctors and
other family planning staff.112 Curtis imposed no such legal requirements
on the Medical Center physicians, relieving them of any obligation to
refrain from relying upon sterilization consent forms obtained through
coercive practices. Further, Curtis’ decision in Madrigal was
unpublished. Importantly, unpublished opinions cannot be cited—indeed,

106 Id. at 19.

RIGHTS IN AMERICA, 1950–1980 160–161, 171–72 (2009) (noting that Curtis’ opinion failed
to grapple with modern standards of informed consent in medical practice).

108 Opinion, supra note 40, at 7.
109 Velez-Ibanez, supra note 25, at 242.
110 Relf, 372 F. Supp. at 1201.
111 Id. at 1202 (citations omitted).
112 See id. at 1204.


they may not even be broadly accessible.113 On this account, by denying
the women any relief in an unpublished opinion, Curtis also silenced the
Madrigal Ten’s stories, suppressing any legal recognition of the harms
that the women endured.114

Despite their loss in the damages phase of the litigation, the

Madrigal Ten were instrumental in achieving significant law reform. In
addition to serving as the catalyst for California’s strengthened
regulations for ensuring voluntary consent to sterilization, the Madrigal
litigation also inspired the anti-sterilization abuse movement in
California and helped to shape Chicana feminism in the 1970s. In 2003,
California finally apologized for its history of coercive sterilization,
although it did not award victims any reparations.115

The story of the Madrigal Ten still resonates today. The threat of
sterilization abuse continues to loom for vulnerable populations,
particularly poor women and women of color. Only ten years after
California’s official apology for abusive sterilization practices, an
independent investigation found that the state’s prison system had
sterilized almost one hundred and fifty female inmates—most of whom
were low-income women and women of color—without proper approval.116
Echoing the plaintiffs in Madrigal, a number of the women prisoners
stated that, although they had signed consent forms, they had done so
under extreme pressure and without full information about the procedure
and its ramifications.117 Clinician attitudes towards coercive sterilization
also appears to have changed little in this context. The California prison
physician defending the prisoner sterilizations used poverty as a
justification for the unlawful procedures: “Over a 10-year period, [the cost
of sterilizing the prisoners] isn’t a huge amount of money . . . compared
to what you save in welfare paying for these unwanted children—as they
procreated more.”118

113 Indeed, outside of archival records, only an excerpt of Curtis’ opinion in Madrigal

is publicly available.
114 See Melissa Murray & Kristin Luker, CASES ON REPRODUCTIVE RIGHTS AND

JUSTICE 882–889 (2015). The Ninth Circuit Court of Appeal also denied the women’s request
for redress in an unpublished table opinion. Madrigal v. Quilligan, 639 F.2d 789 (9th Cir.
1981) (No. 78-3187) (unpublished table opinion) (on file with the Stanford University
Libraries Department of Special Collections, M0673, Mexican American Legal Defense and
Educational Fund Records, RG#5, Series 2: Litigation Files, 1968–1982, Box 945, Folder 4).

115 See Carl Ingram, State Issues Apology for Policy Sterilization, L.A. TIMES, March
12, 2003 at B1; Alexandra Minna Stern et al., California’s Sterilization Survivors: An
Estimate and Call for Redress, 107 AMER. J. PUB. HEALTH 50, 53 (2017) (noting that North
Carolina and Virginia provided redress to compulsory sterilization survivors and urging
California to follow suit).

116 See Corey G. Johnson, Female Inmates Sterilized in California Prisons Without
Approval, THE CTR. FOR INVESTIGATIVE REPORTING (July 7, 2013), https://www.revealnews.

117 See Patrick McGreevy & Phil Willon, Female Inmate Surgery Broke Law, L.A.
TIMES, July 14, 2013, at A4.

118 Johnson, supra note 116.



As new reproductive technologies advance, the tension between
access and abuse that Madrigal highlights continues to resurface. For
example, in recent years medical and family planning professionals have
been enthusiastically promoting long-acting reversible contraception
(“LARC”).119 LARCs, such as intrauterine devices, generally require a
medical provider for both insertion and removal. As Dorothy Roberts has
noted, major media and scientific publications have published articles
“recommending increased use of provider-controlled long-acting
contraceptives among low-income populations in order to reduce poverty,
high school drop-out rates, and Medicaid costs.”120 Reproductive justice
advocates fear that unchecked enthusiasm for LARCs might lead once
again to coercive reproductive control over vulnerable women.121 Of
course, because LARCs and sterilization offer effective fertility control,
many women would also benefit from greater access to these
technologies.122 Yet reproductive technologies continue to present both
promise and peril. Since ideology often drives the use of these
technologies, the risk remains that efforts to increase access will also
increase abuse, particularly on marginalized populations.123

Almost forty years after Madrigal v. Quilligan, historian Virginia

Espino found the surviving plaintiffs and convinced them to tell their
story to the documentary filmmaker Renee Tajima-Peña.124 The
defendant doctors, some of whom give their side of the story in the

119 The American College of Obstetricians and Gynecologists (ACOG) recommends

that physicians “incorporate immediate postpartum LARC into their practices.” See AM.

120 Roberts, supra note 58. Others have noted that some programs offer free LARC
insertion, but provide no coverage for the cost of removal. See Michelle H. Moniz, Kayte
Spector-Bagdady, Michele Heisler, & Lisa Hope Harris, Inpatient Postpartum Long-Acting
Reversible Contraception: Care That Promotes Reproductive Justice, 130 OBSTETRICS &
GYNECOLOGY 783 (2017).

121 See, e.g., Jenny A. Higgins, Celebration Meets Caution: Long Acting Reversible
Contraception (LARC)’s Boons, Potential Busts, and the Benefits of a Reproductive Justice
Approach, 89 CONTRACEPTION 237, 239 (2014); Anu Manchikanti Gomez, Liza Fuentes &
Amy Allina, Women or LARC First? Reproductive Autonomy and the Promotion of Long-
Acting Reversible Contraceptive Methods, 46 PERSPECTIVES ON SEXUAL & REPRODUCTIVE
HEALTH 171, 171, 173 (2014).

122 See Sonya Borrero, Nikki Zite, Joseph E. Potter & James Trussell, Medicaid
Policy on Sterilization—Anachronistic or Still Relevant?, 370 NEW ENG. J. MED. 102, 102
(2014); see also Lisa H. Harris & Taida Wolfe, Stratified Reproduction, Family Planning
Care and The Double Edge of History, 26 CURRENT OPINION IN OBSTETRICS & GYNECOLOGY
539, 539–40 (2014) (noting a growing consensus that sterilization consent regulations
should be revisited to allow for easier access but cautioning that the history of coerced
sterilization must be taken into account).

123 Ikemoto, supra note 12, at 204 (noting that the Relf case also involved the coercive
imposition of Depo Provera shots and intrauterine devices on poor patients and that
“surgical sterilization is not unique in its potential for use as a social control.”).

124 See NO MÁS BEBÉS (NO MORE BABIES) (Moon Canyon Films 2015), available at


documentary film No Más Bebés, continue to maintain their innocence.
The women maintain that they never consented to irreversible

Espino and Tajima-Peña found, unsurprisingly, that the involuntary
sterilizations were devastating for many of the women. Maria Figueroa’s
marriage deteriorated after she was sterilized; she later attempted
suicide.125 Guadalupe Acosta died in 2003 following a series of tragic
events. Acosta’s first child had been taken away from her and the baby
delivered at the Medical Center died at birth. After her partner learned
of her sterilization, he abandoned Acosta and their two surviving
children.126 Helena Orozco’s son Joseph blames his mother’s coerced
sterilization for a “downhill slope” in his family’s life: “First they sterilized
her under duress, trying to lie, and then they go to court with many of
them thinking they might make this right, and then all of a sudden the
doctors get away with what they did . . . . Her life turned for the worse.”127

The lawyers and physicians who advocated for the Madrigal Ten
went on to prominence in their continued fight for civil rights. Antonia
Hernández became the president of the Mexican American Legal Defense
and Educational Fund and later the CEO of the California Community
Foundation. Gloria Molina became the first Chicana elected to the Los
Angeles City Council.128 Buddy Rosenfeld, whose risky detective work as
a young resident brought these sterilization abuses to light, practices as
a gynecologist in Texas. His specialty is reversing tubal ligations.
Rosenfeld and his wife also run an abortion clinic in Houston. As he
explained to a journalist: “I’m still involved in reproductive rights. It’s the
same thing.”129

Despite the trauma of the coerced sterilizations, some of the women
also managed to rebuild their lives. Consuelo Hermosillo, who was only
twenty-three years old when she was sterilized, became a successful chef.
Her son, who owns multiple restaurants in the Los Angeles area,
discovered what happened to his mother only after reading about the case
in a college Chicano studies class.130 In the documentary film about the
case, Hermosillo listens to an old recording made by the trial team. In the
recording, she describes a recurring dream of bringing a newborn baby
boy to Mexico, but she will not show her miracle baby to any of the friends

125 See Diana Gonzalez, Forced Sterilizations: A Long and Sordid History, ACLU OF

S. CAL. (May 18, 2016),

126 See Claudia Dreifus, A Group of Mexican Immigrant Women Were Sterilized
Without Their Consent. Can A New Film Bring Justice Where the Courts Failed?, THE
NATION (Jan. 27, 2016),

127 GUTIERREZ, supra note 21, at 124.
128 See Valdes, supra note 24.
129 See Dreifus, supra note 126.
130 See id.



and family who want to see him. Looking back forty years later,
Hermosillo’s feelings of loss still remain: “It’s like when you bury
somebody . . . . You’re always going to carry it in your head.”131

131 David Montgomery, Sterilized Against Their Will in a Los Angeles Hospital:

Latinas Tell the Story in a New Film, WASH. POST (Jan. 10, 2016), https://www.washington


Birth control and Sterilization.pdf

Christie and Martin’s Jurisprudence.pdf

Forced Cesareans.pdf

Fetal protection.pdf

Opinion _ The Supreme Court s next abor…pdf


Rosario-Lebron, Anibal 5/31/2018
For Educational Use Only


© 2018 Thomson Reuters. No claim to original U.S. Government Works. 1

34 No. 1 Judges’ J. 5

Judges’ Journal
Winter, 1995
Lynn Hecht Schafran

Copyright (c) 1995 by the American Bar Association; Lynn Hecht Schafran


This article is about the credibility of women in the justice system. To begin, I would like each reader to make a decision
in a case that came to my attention from Wisconsin. This case may not seem to you to be about credibility, but by the
end of this article, I hope you will see that it is. Please jot down your decision.

Imagine that you are an employer. There has been an incident of sexual harassment at your court or law firm, and now
you must decide what, if any, disciplinary measures should be taken against the harasser.

The incident was this. A male employee with an unblemished work record was talking on the telephone. He put the
receiver down, walked up behind a female co-worker standing nearby, grabbed and squeezed her breasts, returned to the
telephone and said, “Yup, they’re real.” What, if any, sanction should be imposed on this employee? Should the incident
be ignored? Will you or someone else in the chain of command talk to him about his behavior? Will you put a letter of
reprimand in his personnel file? Will you dock his pay? Suspend him? Fire him?

Take a moment to jot down whatever your response as the employer would be.

I am going to talk about credibility by focusing on three aspects of this issue, which I call the Three Cs of Credibility:
collective credibility, contextual credibility, and consequential credibility.

Before I explain these three categories, let me define “credible.” It is a word that encompasses many meanings: truthful,
believable, trustworthy, intelligent, convincing, reasonable, competent, capable, someone to be taken seriously, someone
who matters in the world. “Credible” is the crucial attribute for a lawyer, litigant, complainant, defendant or witness.
Yet for women, achieving credibility in and out of the courtroom is no easy task.


This brings me to my first category, “Collective Credibility,” by which I mean belonging to a group that has credibility.
Simply put, women, as a group, do not.

Custom and law have taught that women are not to be taken seriously and not to be believed. For most of this country’s
history, the law classed women with children and the mentally impaired and forbade us to own property, enter into
contracts, or vote. The rape laws were a codified expression of mistrust. Although the laws have changed, social science
and legal research reveal that women are still perceived as less credible than men.

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In an often replicated experiment, two groups of matched subjects evaluate an identical set of essays, one group believing
the essays to have been written by a man, the other group believing them to have been written by a woman. Those essays
believed to have been written by a man are consistently evaluated as better written and more persuasive.

Student evaluations of college and graduate professors reveal that although both male and female students often rank
their women teachers as superior in the sense of being better prepared, having mastery of the material, and being more
responsive to students, students give significantly more weight to the views of their male professors, evaluating them as
more credible, authoritative, and persuasive than those of their female professors. Moreover, male students are much
more dramatically prejudiced in favor of their male teachers than are female students.

Even youngsters are acutely conscious that women and girls are not as credible as men and boys. In 1982, two thousand
Colorado school children in grades three through twelve were asked “If you woke up tomorrow and discovered that you
were the opposite sex from what you are now, how would your life be different?”

Both boys and girls exhibited a fundamental contempt for being female and women’s traditional role in society. The boys
perceived being a girl as a disaster because they would be valued only for their appearance and would have to give up all
but the most stereotypically feminine activities. The girls saw being a boy as vastly liberating. Their comments included,
“I would get paid more,” and “My dad would respect me more.”

Where this perception of men as the more credible sex takes us is brilliantly revealed in a Canadian hit film called
“Wisecracks.” The film is about female comedians and combines clips of their performances with interviews in which
they discuss how hard it is to be taken seriously as funny women. One of the comedians observes that when a male comic
takes the stage, the audience assumes he will make them laugh. But when a female comic takes the stage, the audience’s
attitude is “show me.”

*6 This perception of men as competent to do the job and women as not is not confined to comedy clubs. A few years
ago I presented a program for the Missouri judiciary at which a male appellate judge said to his colleagues: “Gentlemen,
let’s tell the truth. When a male attorney we do not know appears before us, we assume that he can do the job. But when
a female attorney we don’t know appears, our attitude is ‘show me.”’

The American Bar Association Commission on Women in the Profession has written:

Women report that they are often treated with a presumption of incompetence, to be overcome only by
flawless performance, whereas they see men attorneys treated with a presumption of competence overcome
only after numerous significant mistakes. Minority women testified that adverse presumptions are even

more likely to be made about their competence. 1

The legal system’s dichotomous view of women’s and men’s credibility and competence affects not only assessments of
women lawyers, but of women litigants and parties as well. The most striking example I can give you is a study of right-
to-die cases.

Dr. Steven Miles, a Minnesota physician specializing in gerontology, identified 22 appellate court decisions from 14 states
in the years 1979-1989 in which courts were asked to construct the wishes of individuals who were legally incompetent

because of an accident or terminal illness and who had not left living wills. 2 These individuals had all said essentially

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the same thing to family and friends in discussions about illness, accidents, and others’ right-to-die cases: If I am ever
reduced to a vegetative state, don’t let them keep me on life support.

Eight of these decisions dealt with men, fourteen with women. Dr. Miles found a sharp difference in the way courts viewed
incompetent women and incompetent men. Women were referred to by their first names and constructed as emotional,
immature, and unreflective. Men were referred to by their surnames and constructed as rational, mature, and decisive.

In the large majority of cases involving a man, the courts constructed the patient’s wishes based on his previous oral
statements to family and friends, and allowed withdrawal of life support. But in the large majority of cases involving
a woman, the courts directed that the decision be made by a male parent or guardian, the treating physician, or a
government agency.

In describing the language used in these 22 opinions Dr. Miles wrote, “A jargon of childlikeness is used to discount the
maturity of persons when a preference is not constructed. Only women are described as being in fetal positions or in an
infantile state …The legal familial relationship of ‘parens patriae’ is only asserted in relation to women.” In other words,
men’s moral agency must be respected even when they are legally incompetent, but women are still only children.


The second aspect of credibility is “Contextual Credibility,” by which I mean credibility that depends upon understanding
the context of the claim. How can you assess someone’s credibility if you literally do not know what she is talking about–
which is often the case when the matter is about women’s life experiences. Our justice system, like our entire society, is
unused to hearing women talk about their lives. An individual has a hard time being perceived as credible when she is
talking about an area about which people–both men and women–have few facts and many mistaken opinions.

In October 1991 we were riveted to our television sets watching the Senate Judiciary Committee hearings into Professor
Anita Hill’s allegations of sexual harassment against then-judge, now U.S. Supreme Court Associate Justice Clarence
Thomas. Public opinion polls showed that respondents believed him over her by a two-to-one margin.

In October 1992 I sat at the National Association of Women Judge’s luncheon honoring Professor Hill and thought
about the sea change in public opinion about her credibility that occurred over that year. Current polls show that the
public now perceives her as the credible witness.

How do we account for this massive shift? I believe it is because of national teach-ins about sexual harassment. Before the
hearings my colleagues at the NOW Legal Defense and Education Fund urged the Senate Judiciary Committee to begin
the hearings with an expert witness to explain what sexual harassment is, how it impacts its victims, how victims respond,
and that sexual harassers come from all walks of life, including the judiciary. The Committee ignored our advice, and
Anita Hill testified in a vacuum. The result was that she faced the same kind of incomprehension as do victims of child
sexual abuse and rape when they seek justice.

She was vilified, for example, for her failure to file a sexual harassment complaint. Yet those who report sexual
harassment, child sexual abuse, and sexual assault *8 are the extreme exception rather than the norm. Data from
numerous highly reputable studies indicate that only about 5 percent of those who identify themselves as victims of

sexual harassment and 10 to 15 percent of rape victims ever file complaints. 4

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The traditional insistence on a “prompt report” in sex crimes cases has always been the bane of rape victims, who
find themselves confronted with police, prosecutors, judges, and juries for whom waiting equals fabricating. There is a
wholesale failure to understand that victims of any kind of sexual abuse feel so deeply and personally violated and so
fearful of retaliation that they resist disclosure, fearing that they will not be believed and that their humiliation will be
compounded. Many never tell anyone. Others wait days, weeks, months, and even years before telling a friend or seeking
help from a rape crisis center, much less going to the police.

The judicial system is beginning to recognize that the so-called common sense about women’s issues such as how a
battered woman will behave is so contrary to reality that expert witness testimony is needed to educate the judge and

jury. Canada’s Supreme Court decision in Regina v. Lavallee 5 illustrates this point.

A woman shoots her husband in the back of the head. She insists this was not the cold-blooded murder it appears to be
but rather an act of self defense. Can we credit that this is the act of a reasonable woman? Her defense is incredible until
an expert witness explains the *9 battered woman’s syndrome.

It is only by viewing the situation through the woman’s eyes that we can understand her response, and that she becomes
a credible witness. The movement toward assessing women’s responses from women’s points of view is one of the most
significant advances in the effort to achieve gender equity in the courts.

A recent United States case involved a female Internal Revenue Service employee who was receiving obsessive letters
from a male co-worker, which, although not overtly sexual in content, frightened her. Then he showed up at an off-site
training program which only her husband and supervisor were supposed to know she was attending. When the IRS took
what she considered inadequate action to protect her, she filed a sexual harassment suit. The trial court dismissed, but
the Ninth Circuit Court of Appeals reversed, stating:

[B]ecause women are disproportionately victims of rape and sexual assault, women have a stronger incentive
to be concerned with sexual behavior. Women who are victims of mild forms of sexual harassment may
understandably worry whether a harasser’s conduct is merely a prelude to violent sexual assault. Men, who
are rarely victims of sexual assault, may view sexual conduct in a vacuum without a full appreciation of the

social setting or the underlying threat of violence that a woman may perceive. 6

In a similar vein, Canada’s Court of Appeal recognized in Regina v. McCraw 7 that a letter sent to three cheerleaders
threatening to rape them was not, as the trial judge found, “an adoring fantasy” but rather a terrifying threat to cause
bodily harm.

The dissenting appellate opinion states that the “outcome depends upon the reaction of the reader to the letters which
constitute the criminal acts alleged. To me, they are simply obscene: to my brother Brooke, they are a threat to rape.”
I was struck by the dissenting judge’s description of these letters as if they were some kind of literature published for
all to read and interpret individually. In fact, these letters were directed to three specific women, with a fourth letter to
one of them demanding that she meet the writer at a specific place or he would hunt her down at her home. The only
interpretation of these letters that is material is that of the women to whom they were sent.

Because I have developed a model judicial education curriculum about rape and have done extensive research in this area
for many months (see sidebar article), I feel compelled to drop a footnote to my remarks on the McCraw case. The notion

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on the part of the trial judge and the appellate dissenter that the defendant’s letters are “more of an adoring fantasy than
a threat to cause serious bodily harm” not only ignores the letters’ impact on the victims, it ignores the fact that such
“fantasies” *40 should not be taken lightly. The research on sex offenders demonstrates that rapists spend a great deal
of time fantasizing about the acts they will commit. It is estimated that 25 percent of rapists are literally “acting out a

fantasy in which they force a woman to have sex, and then she falls in love with them.” 8

The disparate views of the majority and minority in McCraw reminded me of a story told at a program on gender equity
presented by the Supreme Court of British Columbia at which I was a speaker in 1991. During a discussion of how
women’s behavior is circumscribed by fear of rape, a male judge explained how he came to understand the difference in
women’s and men’s perceptions of the world.

This judge had always left his doors and windows open. Then he got married. Each night as he was about to go to bed,
his wife asked if he were sure the doors and windows were locked, and each night he said to her, “I don’t know what
you are worried about. We don’t have anything worth stealing.” This went on for a while until it dawned on him that
although his wife was too shy to say it, she was not worrying about a thief stealing their material possessions. She was
worried about being raped.


The third aspect of credibility I call consequential credibility. Consequential is the opposite of inconsequential. Part of
having credibility is being seen as someone of consequence, someone who matters, someone *41 to be taken seriously.
Part of being taken seriously is having your harms and injuries taken seriously–not devalued and trivialized.

Recently a Wyoming judge told me of a case in which she asked a man accused of assaulting a woman whether he wished
to say anything in his defense. The defendant rose and said, “I don’t see what all the fuss is about. It was only a woman.”

This man’s attitude is no aberration. Every study of the justice system’s response to domestic violence has found myriad
cases in which wife batterers who inflict serious injuries receive no meaningful punishment. This widespread trivializing
of injuries to women is a stark expression of women’s lack of consequence in the world.

Minimization of harms to women is also a factor in rape sentencing, especially cases involving nonstrangers. Eighty

percent of rapes are committed by someone known to the victim 9 and often these rapists have no other criminal record,

even though there is a high likelihood that they are recidivists. 10 There is a supremely mistaken assumption that for
a woman to be raped by someone she knows is nothing more than “bad sex,” nothing worth sending a nice guy to jail
for. But research shows that victims of nonstranger rape usually suffer even more severe and long lasting psychological
trauma than victims of stranger rape. They experience greater societal and self blame for not avoiding the rape and their

ability to trust other people in any context is destroyed. 11

I began this article by asking you to decide what disciplinary measures, if any, should be taken against a male employee
who sexually harassed a female coworker by grabbing her breasts and then making a comment *42 about her breasts
to a crony on the telephone. This is the type of situation that might come to your attention in a sexual harassment case,
or in an administrative proceeding involving judicial or nonjudicial court personnel who are sexual harassers.

I asked you to make a decision about this case as a prelude to telling you about a case in which the Chrysler Corporation
fired a harasser for precisely this behavior, but was overruled by an arbitrator. The arbitrator stated that the punishment

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was too severe for a first offense because this was not the equivalent of “extremely serious offenses, such as stealing

money or striking a foreman.” 12 Sexual harassment, even when it is strictly verbal, causes significant harm to the victim.
This case of sexual harassment was legally a sexual assault. Yet to this arbitrator it was less serious than taking money
or committing a nonsexual assault against a man in a position of authority.

Educate yourselves and others to see women’s cases through women’s eyes

This perception that sexual assault is less serious than theft is appalling, and it is not unique to this case. Under sentencing

guidelines for the United States federal courts, rape is punished far less severely than robbery. 13 Many of the state
supreme court task forces on gender bias in the courts have urged that the state sentencing guidelines for rape be increased
to take account of the profound psychological trauma of sexual assault.

How we sentence tells us who we value. What could be a clearer expression of women’s lack of consequence in the world
than de minimis sentences for the archetypal crime against women, rape.

* * *

Women lack collective credibility, contextual credibility, and consequential credibility. As a group we are perceived as
less competent than men; the context of the harms for which we seek redress in the courts is often completely foreign to
the trier of fact; and even when the harm is acknowledged, it is often minimized by a de minimis punishment for those
who injure us.

Changing this requires an intensely conscious effort. Some steps that other judges have taken include monitoring their
response to the lawyers who appear before them to see whether they are surprised when a woman is able and a man is
not, and mentally switching the sex of the individual they are evaluating to ask themselves whether they would respond
the same way if this woman were a man and vice versa.

But I believe the most important thing you can do is to educate yourselves and permit expert witnesses to educate your
juries, so that you, and they, can see women’s cases through women’s eyes and in light of the voluminous research that
now exists about matters such as wife beating, sexual harassment, rape and the myriad other criminal, civil, and family
law issues that I have not had room to address.

No one, and I include women, is born with this knowledge. Often the reality is counterintuitive. But we now have
information to enable the justice system to correct the credibility imbalance that has hampered women’s access to justice
for so long.

One article is only the beginning of a complete exploration of gender issues and the courts. In 1990 I published a book
called Promoting Gender Fairness Through Judicial Education: A Guide to the Issues and Resources, which covers 60
substantive and procedural areas ranging from law and psychiatry to judicial writing in which gender bias may be a
factor. Only by incorporating this material throughout judicial education will it be possible to address all the issues that
need to be studied, and to make clear that gender equity issues are not a discrete subject for a single training program,
but an integral part of the mainstream, daily concerns of the courts.


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1. Some of the information in this article was first presented in a speech to the Ontario Court of Justice (Provincial
Division) Gender Equity Workshops, October 26 and November 16, 1992, Toronto, Canada.

1 ABA Commission on Women in the Profession, Report to the House of Delegates, 1988, at 12.

2 Steven H. Miles and Allison August, Courts, Gender and the “Right to Die”, 18 Law, Medicine and Health Care 85

3 E.g., U.S. Merit Systems Protection Board, Sexual Harassment of Federal Workers: Is it a Problem? U.S. Gov’t Printing
Office (1981); Sexual Harassment of Federal Workers: An Update (1987).

4 E.g., Crime Victims Research and Treatment Center, Rape in America: A Report to the Nation 7 (1992) [hereinafter
Rape in America]; Majority Staff of the Senate Committee on the Judiciary, 102d Cong. 1st Sen., Violence Against
Women: The Increase of Rape in America 7 (Comm. Print 1991).

5 1990 S.C.R. 852.

6 Ellison v. Brady, 924 F.2d 872, 879 (9th Cir. 1991).

7 51 C.C.C.(3d) 239 (Ont. C.).

8 Daniel Goleman, New Studies Map the Mind of a Rapist, N.Y. Times, Dec. 10, 1991, at C1.
The judicial education curriculum, Understanding Sexual Violence: the Judicial Response to Stranger and Nonstranger
Rape and Sexual Assault, is available from the National Judicial Education Program, 99 Hudson Street, 12th Floor,
New York, New York 10013; (212) 925-6635. The cost is $60, which includes domestic postage. 9. Rape in America,
supra note 4, at 5.

10 Gene R. Abel, et al., Self-Reported Sex Crimes of Nonincarcerated Paraphilliacs, 2 J. Interpersonal Violence 3 (1987).
The 126 rapists in this study averaged seven victims each.

11 Sally I. Bowie, et al, Blitz Rape and Confidence Rape: Implications for Clinical Intervention, 44 Am. J. of Psychotherapy
180 (1990).

12 In the Matter of the Arbitration Proceedings Between Chrysler Motors Corp. and Local 793, Allied Industrial Workers
of America, AFL-CIO, involving the Discharge of Ronald Gallenbeck (July 24, 1989) at 9.

13 U.S. Senate Committee on the Judiciary, Majority Report, Analysis of Federal Rape Sentences 1,3 (1992).

34 No. 1 JUDGEJ 5

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37 N.Y.L. Sch. L. Rev. 123

New York Law School Law Review

Kim Lane Scheppele a

Copyright (c) 1993 by the New York Law School Law Review; Kim Lane Scheppele



Sergeant Joe Friday, a no-nonsense kind of detective on the old television series Dragnet, used to confront distraught
women with the clipped injunction: “Just the facts, ma’am.” Everyone knew what he meant. These “hysterical” women,
privileging the expression of emotion over the recitation of relevant detail, were not being good witnesses. They confused
what an event felt like with what it was; they wandered off the point into a tangle of irrelevancies. They did not crisply
present the sort of evidence that would allow a conscientious detective like Sergeant Friday to catch the criminal. In
short, these women were not helpful to the law.

Though Sergeant Friday no longer barks commands at weeping women on television, except in reruns, women’s evidence
is often still suspect in law. The stories women tell in court, particularly in cases of sexualized violence like rape, sexual
harassment, incest, and woman battering, are vulnerable to attack as unbelievable. Cases of sexualized violence often
evolve into a “he said, she said” battle of competing narratives in which the “he,” who is the defendant, wins by default
simply because the evidence is contested. Default rules about the burden of proof *124 and the benefit of the doubt
resolve all divergent accounts in favor of the accused when there are merely contested stories with no “hard” evidence to
compel choice between them. Though laws on the books look more woman-friendly on issues of sexualized violence than

they used to, women do not always find that helpful laws produce victories for women. 1 The worst of the overt sexism

of the law may have been dismantled: gone, for the most part, are corroboration requirements 2 and the unrestrained

admissibility of the woman’s sexual history in rape trials; 3 the exemption in rape law that says rape cannot happen within

marriage; 4 legal *125 permission for husbands to beat their wives in the name of proper discipline; 5 the view that

children’s complaints of sexual abuse are primarily fantasy; 6 and approval of sexual harassment as an implied condition

of work for women. 7 But these apparent victories are superficial. More persistent aspects of sexism have been merely
pushed underground.

In this article, I argue that the law is still sexist, but now in the name of fact rather than doctrine. Courts have continued
to use woman-unfriendly habits of evaluating what counts as legal evidence. Representatives of the law still want “just
the facts, ma’am.” But these particular facts are hardly neutral or natural. Facts must be constructed and interpreted just

as laws must be, 8 and the production of facts as an accomplishment of legal practitioners is only now beginning to be

examined. 9 When we begin to focus on the way in which facts are *126 presented as natural and interpreted as truth,
we see that much misogynistic work is done in the construction of “reality.”

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This article focuses on one of many elements in the construction of facts that works to the disadvantage of women.
Women who delay in telling their stories of abuse at the hands of men or who appear to change their stories over time
about such abuse are particularly likely to be discredited as liars. The very fact of delay or change is used as evidence

that the delayed or changed stories cannot possibly be true. 10 But abused women frequently have exactly this response:

they repress what happened; 11 they cannot speak; 12 they hesitate, waver, and procrastinate; 13 they hope the abuse will

go away; 14 they cover up for *127 their abusers; 15 they try harder to be “good girls”; 16 and they take the blame for

the abuse upon themselves. 17 Such actions produce delayed or altered stories over time, 18 which are then disbelieved

for the very reason that they have been revised. 19

The disbelief of delayed or revised stories reflects a view that the truth is singular, immediately apparent, and permanent
—a view not unique to law. As this article shows, the construction of facts in law is not based only, or even primarily,
on the special expertise of lawyers or on detailed knowledge of the law. Of course, lawyers have a great deal of influence
in shaping the facts as they appear at trial. But lawyers, at least successful *128 lawyers, do not just mobilize their legal
expertise to achieve these ends. They must also mobilize ordinary storytelling practices that are present outside legal
settings, in which credibility, coherence, and plausibility are all judged against a background of common knowledge,
itself shot through with unthinking assumptions.


During a riveting weekend in October 1991, many Americans tuned their television sets to the Supreme Court
Confirmation Hearings of Judge Clarence Thomas. These hearings had turned to the question of sexual-harassment
allegations made against Judge Thomas by his former close aide, Professor Anita Hill. The Republican members of the
Senate Judiciary Committee, unfettered by technical rules of evidence that would operate in a court of law, were able
to show in stark form just how such a witness could be discredited. They used every strategy they could think of to
undermine Professor Hill’s testimony. Prominent among the strategies was their focus on: (1) her delay in reporting the
harassment; and (2) the change in her accounts of what the harassment involved as she went through successive retellings
of the story. In the space opened up by Professor Hill’s silences and versions, Republican senators attempted to insert

various stock stories 21 about the scorned woman, the woman who *129 had lost touch with reality, and the woman
motivated by political animus who was making a bid for attention.

Although the Senate Judiciary Committee members who held the hearings repeatedly emphasized that the proceedings
were not a trial, legalistic conceptions of “burden of proof” and “presumption of innocence” were used throughout the

three days of marathon sessions. 22 But there the legal formality ended. Evidence was introduced without supporting

witnesses; 23 insinuations were made about Professor Hill’s motivation and credibility that had no basis in evidence; 24

people without any expertise in evaluating psychiatric claims were asked for their opinions of Professor Hill’s personality

and sanity: 25 questioning was limited by the unwillingness of then-Judge Clarence Thomas to answer questions outside

the scope that he deemed fit for inquiry, 26 even though much of what he refused to talk about would have been though
relevant had this been a proper trial; and witnesses who had relevant evidence to introduce were kept dangling and

ultimately not asked for the information they had as part of the hearings. 27 Whatever the Senate hearings might have
been designed to accomplish, they left innuendo and unsubstantiated stories in their wake.

These stories reveal some popular, common-sense biases in the evaluation of historical accounts, particularly when
women are making claims that they have been the target of abuse. To see how popular conceptions of truth can be

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mobilized to discredit a witness, it helps to look first at the themes that politicians believe both will work to undermine
a claim and be understandable to the public. Then we can see how these same strategies are used in more formal legal
settings in muted form. To begin, let us look at how those defending Judge Thomas repeatedly emphasized that Professor
Hill had delayed making her accusations in the first place and had changed her story once she did.

*130 A. Silences

Professor Hill’s initial delay in reporting the harassment—and her public silence until the last moment before the
confirmation vote was to occur—was particularly salient to the senators. Senator Strom Thurmond raised the issue in
his opening statement, before Anita Hill had even testified:

The alleged harassment she describes took place some ten years ago. During that time, she continued to
initiate contact with Judge Thomas in an apparently friendly manner. In addition, Professor Hill chose
to publicize her allegations the day before the full Senate would have voted to confirm Judge Thomas.
While I fully intend to maintain an open mind during today’s testimony, I must say that the timing of these
statements raises a tremendous number of questions which must be dealt with, and I can assure all the

witnesses that we shall be unstinting in our effort to ascertain the truth. 28

In other words, why didn’t Professor Hill come forward at the time with her accounts of sexual harassment? Given that
she remained silent and continued on as if nothing had happened, Senator Thurmond strongly suspected that the initial
silence and its revelation at the moment of the confirmation hearings spoke for itself: the message was that the harassing
conduct never occurred.

Judge Thomas himself emphasized Professor Hill’s initial silence in his account of events:

I find it particularly troubling that she never raised any hint that she was uncomfortable with me. She
did not raise or mention it when considering moving with me to EEOC [Equal Employment Opportunity
Commission] from the Department of Education, and she’d never raised it with me when she left EEOC and
was moving on in her life. And, to my fullest knowledge, she did not speak to any other women working
with or around me who would feel comfortable enough to raise it with me, especially Diane Holt [Thomas’s
secretary], to whom she seemed closest on my *131 personal staff. Nor did she raise it with mutual friends

such as Linda Jackson or Gil Hardy. 29

Senator Arlen Specter pressed Professor Hill on her initial silence, focusing on her lack of contemporaneous notes about
the harassing behavior:

As an experienced attorney and as someone who was in the field of handling sexual harassment cases, didn’t
it cross your mind that if you needed to defend yourself from what you anticipated he might do, that your

evidentiary position would be much stronger if you had made some notes? 30

Professor Hill indicated that she kept detailed records of her assignments and work products while the harassment was
going on because she wanted documentation of her professional performance in the event Judge Thomas tried to fire

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her for refusing his solicitations. But only contemporaneous records of the harassment itself would have demonstrated
to Senator Specter that it had actually happened.

Talk of the “eleventh hour charges” and of Professor Hill’s puzzling silence pervaded the hearings, as if the timing of her
statement to the committee alone was evidence of its falseness. A number of senators believed that her only motivation
for coming forward at that time was political and that politics and truth-telling were mutually exclusive motivations. So,
the initial silence hung over the proceedings as evidence that political revenge was the true story.

Trying to put her initial silence in some context, Professor Hill explained how she reacted to Judge Thomas’s conduct
at the time:

My reaction to these conversations was to avoid them by eliminating opportunities for us to engage in
extended conversations. This was difficult because at the time I was his only assistant at the Office of
Education—or Office for Civil Rights…. When Judge Thomas was made chair of the EEOC, I needed to
face the question of whether to go with him. I was asked to do so, and I did. The work itself was interesting,
and at that time it appeared that the sexual overtures which had so *132 troubled me had ended. I also
faced the realistic fact that I had no alternative job. While I might have gone back to private practice,
perhaps in my old firm or at another, I was dedicated to civil rights work, and my first choice was to be
in that field. Moreover, the Department of Education itself was a dubious venture. President Reagan was

seeking to abolish the entire department. 31

Pressing Professor Hill on her failure to say anything at the time, Senator Leahy asked what the mechanisms for reporting
complaints within the EEOC would have been then. Professor Hill responded by saying that she believed she would have
had to go to the Congressional oversight committee. Asked what she believed would have happened had she done so,
Professor Hill replied: “Well, I can speculate that it might have been difficult. I can speculate that had I come forward
immediately after I left the EEOC, I can speculate that I would have lost my job at Oral Roberts” University, where she

taught law. 32 Professor Hill did testify that she talked to close friends about the harassment, but she did not speak to
anyone at work. When asked how she could have allowed this “reprehensible conduct to go on right in the headquarters”

of the agency charged with enforcing sexual-harassment laws, 33 Professor Hill replied:

Well, it was a very trying and difficult decision for me not to say anything further. I can only say that when
I made the decision to just withdraw from the situation and not press a claim or charge against him, that
I may have shirked a duty, a responsibility that I had. And to that extent I confess that I am very sorry
that I did not do something or say something, but at the time that was my best judgment. Maybe it was a
poor judgment but it wasn’t a dishonest [one], and it wasn’t a completely unreasonable choice that I made

given the circumstances. 34

Some of the people to whom she originally confided the sexual-harassment allegations testified on her behalf. Four
friends and colleagues of Professor Hill testified to versions of the harassment story that *133 Professor Hill had told
them either at the time that it occurred (witnesses Ellen Wells, Susan Hoerchner, and John Carr) or when she was applying
for jobs and had to explain why she had left the Equal Employment Opportunity Commission where she worked with

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Clarence Thomas (witness John Paul). 35 Each of the four witnesses had contacted Professor Hill after they heard of her
allegations, offering to testify that she had told them these stories earlier. None of the four witnesses had met any of the
other corroborating witnesses prior to appearing in Washington to testify at the Senate hearings. But none of them were
able to reproduce in detail just what had occurred between Thomas and Hill, because Professor Hill’s accounts to each
of them had been quite nonspecific, general, and brief. Although the combined testimony of the four witnesses indicated
that Professor Hill had confided in each of them at or near the time when the incidents were alleged to have occurred,
the lack of detailed corroboration led the Republican Senators on to their next problem with Professor Hill’s testimony.

B. Revisions

Many versions of events were presented during the course of the hearings. Once her allegations became known to the
Senate Judiciary Committee, Professor Hill had three opportunities to narrate what had happened: once, to the FBI
agents who arrived at her house one evening after work to interview her; again, to the Senate Committee staffers who
were trying to work out what she would say if called as a witness; and yet again, to the whole world as it watched her
testimony live on television before the Senate Judiciary Committee. In the televised account, new details emerged that
had not been present in the earlier versions, though none of the new details conflicted with earlier, more general stories.
But the very fact of the growing detail was used as evidence that Professor Hill was lying. Senator Orrin Hatch described

her stories as “[t]hree different versions, each expansive, each successively expansive.” 36 Constancy of stories over time
was presented as the crucial marker of truth. Lack of constancy meant a lack of truth.

*134 Even Judge Thomas used Professor Hill’s increasing detail as evidence of the falsity of the charges:

The facts keep changing, Senator. When the FBI visited me, the statements to this committee and the
questions were one thing. The FBI’s subsequent questions were another thing, and the statements today as
I received summaries of them were another thing. It is not my fault that the facts changed. What I have
said to you is categorical; that any allegations that I engaged in any conduct involving sexual activity,
pornographic movies, attempted to date her, any allegations, I deny. It is not true. So, the facts can change,

but my denial does not. 37

Judge Thomas invoked the popular idea that statements that remain the same over time appear more reliable than
statements that appear to change. He was asserting that his categorical denials were more true than Professor Hill’s
“changing” facts precisely because his denials had never been subject to revision.

That Professor Hill’s story appeared to change over time received much attention during Senator Specter’s questioning.
He tried to establish crucial inconsistencies and additions, markers of falsehood of the whole account, by taking each
individual fact she had stated and holding it up against prior individual facts she had described. Picking apart the stories

required denarrativizing the accounts or, in the words of Andrew Ross, engaging in “the fetishizing of detail.” 38 One
statement, surgically cut from its context, was compared to another, similarly surgically cut. Professor Hill, sensing that
her story was getting lost in the false concreteness of specificity, told Senator Specter:

Well, I think if you start to look at each individual problem with the statement, then you’re not going to be
satisfied that it’s true. But I think the statement has to be taken as a whole. There is nothing in this statement
that—or nothing in my background, nothing in my statement—there is no motivation that would show
that I would make up something like this. And I guess one really *135 does have to understand something

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about the nature of sexual harassment. It is very difficult for people to come forward with these things—
these kind of things. And it wasn’t as though I rushed forward with this information. I can only tell you
what happened and, to the best of my recollection, what occurred and ask you to take that into account.
Now, you have to make your own judgment about it from there on, but I do want you to take into account

the whole thing. 39

The whole story, Professor Hill argued, was more than the sum of its parts.

Why didn’t she tell the FBI about Coke can incident, Senator Specter asked? Why did she omit a vivid description of
the specific acts Judge Thomas had told her he enjoyed when watching pornographic movies? The FBI report contained

“no reference to any mention of Judge Thomas’s private parts or sexual prowess or size, et cetera,” 40 noted Senator
Specter. Professor Hill responded to these questions by saying, “the FBI agent made clear that if I were embarrassed
about talking about something, that I could decline to discuss things that were too embarrassing but that I could provide

as much information as I felt comfortable with at that time.” 41 Though she later said, “I never declined to answer
a question because it was too embarrassing,” she also said, “I told them the nature of the comments and did not tell
them more specifics.” She added, “I was very uncomfortable talking to the agent about that, these incidents. I am very
uncomfortable now. But I feel that it is necessary. The FBI agent told me that it was regular procedure to come back and

ask for more specifics if it was necessary. And so at that time, I did not provide all the specifics that I could have.” 42

C. Counterstories

On the other side, Judge Thomas denied Professor Hill’s allegation and substituted in part his own narrative of what had
happened—that he was the true victim in the proceedings. He could present himself in this way because he called on the
stock story of a man betrayed by a woman *136 he had trusted. He had always treated his whole staff professionally,
cordially, and without the interjection of personal distractions, he said. Most memorably, however, he imposed another
strong narrative pattern on the proceedings:

Senator, in the 1970s, I became very interested in the issue of lynching, and if you want to track through
this country in the 19th and 20th century the lynchings of black men, you will see that there is invariably
or in many instances a relationship with sex and an accusation that that person cannot shake off. That is
the point that I’m trying to make, and that is the point that I was making last night, that this is a high-tech
lynching. I cannot shake off these accusations because they play to the worst stereotypes we have about

black men in this country. 43

And so Judge Thomas, who had tried in his first round of confirmation hearings to epitomize “racelessness,” as Toni

Morrison has described it, 44 found himself invoking race as his ultimate defense. 45 As Senator Hatch led him through
a series of questions concerning specific stereotypes about black men and their sexual prowess that were invoked by
Professor Hill’s charges, Judge Thomas confirmed in detail just which allegations partook of stereotyping and which
ones did not.

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Supplementing the historical race narrative, Judge Thomas added personal and political narratives. The personal
narrative featured a man from Pin Point, Georgia, who had grown up to be offered the greatest opportunity in the world,
only to have it snatched away from him by the demeaning politics of race. But he would survive it:

This has been an enormously difficult experience, but I don’t think that that’s the worst of it. I’m 43 years old,
and if I’m not confirmed, I’m still the youngest member of the U.S. Court of Appeals for the D.C. Circuit.
I’ll go on. I’ll go back to my life of talking to my neighbors, and cutting my grass, and getting a *137 Big

Mac at McDonald’s, and driving my car, [and] seeing my kid play football. I’ll live. I’ll have my life back. 46

But, in Thomas’s view, the country would not do as well:

I think the country has been hurt by this process. I think we are destroying our country, we are destroying
our institutions, and I think it’s a sad day when the U.S. Senate can be used by interest groups and hate
mongers and people who are interested in digging up dirt to destroy other people, and who will stop at
no tactics when they can use our great institutions for their own political ends. We are gone far beyond

McCarthyism. This is far more dangerous than McCarthyism. At least McCarthy was elected. 47

Presenting himself as the man victimized by malicious uses of his race to discredit him, Judge Thomas allied himself with
the image of the United States, which had been victimized as well.

D. Filling in Silences and Revising Revisions

Multiple versions from Hill’s own accounting, a blanket denial and counternarratives from Thomas, as well as many
other versions from various witnesses, left the Senate Judiciary Committee with a lot to pick apart. And much of the
strategy of those who won by getting Judge Thomas through the confirmation process and onto the Supreme Court
depended on presenting Clarence Thomas as the real victim and Anita Hill as the true aggressor. This reversal was
accomplished in large measure by presenting Anita Hill’s story as a revised account, growing out of a suspicious silence.

In the gap created within the initial account and in the spaces chipped out of the apparent inconsistencies in Professor
Hill’s multiple versions, many alternative narratives about Professor Hill were presented as plausible. Witnesses
supporting Judge Thomas presented alternative stories that would explain Anita Hill’s charges of sexual harassment,
ranging from Professor Hill’s alleged grandiosity and ambition (witness J.C. Alvarez), to Professor Hill’s status as a

“scorned woman” (witness Phyllis *138 Berry), to her alleged flights of fantasy (witness John Doggett). 48 Other
witnesses for Judge Thomas expressed disbelief that he could do the acts alleged (witnesses Nancy Fitch and Diane

Holt), 49 opening up more opportunities to recast Professor Hill’s story as the story of a woman bent on revenge, a

woman given to fantasy, a calculating politica, 50 a decontextualized woman lost in space.

The Hill/Thomas hearings were not a judicial forum. But the tactics used in an attempt to discredit Hill’s testimony
borrow both from the courtroom and from daily life. Stories that emerge from silence or that are revised over time
—elaborated, altered in tone, emerging in public out of a silence that went before—are presented as suspect precisely
because they are delayed or revised. With the polls showing that the tactic worked to make Judge Thomas’s counter-

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stories more believable (or at least no less credible) than Professor Hill’s harassment narrative and with Senators
apparently believing the same, Clarence Thomas was confirmed.


Anita Hill is not the only woman to have remained silent about sexual harassment. In fact, most women do not
immediately talk about the details of sexual harassment in ways that are likely to make prosecuting the offenders

straightforward in a court of law. 51 Women who experience rape, domestic abuse, incest, and other forms of sexualized

threats and sexualized violence often have the same reaction. 52 Many women do not talk about the events with anyone
at the time, and even those women willing to talk at the time do not report the threats and violence against them to the

police or other officials who can mobilize the law. 53 When women first talk about the unspeakable to others, they often
present initial accounts that try to make things normal again. They try to smooth out social relations by minimizing the
harm of the abuse, engaging in self- *139 blame, telling stories that offer alternative explanations of events so that the
full consequences of the abuse do not have to be dealt with at the time, and disguising the brutality through descriptive

distortions of events. 54

In psychological terms, women who have been sexually assaulted, whether through rape, incest, domestic brutality,

workplace harassment, or extended periods of “domestic captivity,” 55 often show signs of post-traumatic stress

disorder. 56 Survivors of extraordinary brutality often literally cannot say what they have seen or put into words the

terror that they have felt. 57 Picking through the shards of a former life, survivors can no longer put the pieces into
relation with each other to tell a coherent and compelling narrative about how things disintegrated. As therapists who
have worked with traumatized patients have noted, “ t he survivor’s initial account of the event may be repetitious,
stereotyped, and emotionless…. It does not develop or progress in time, and it does not reveal the storyteller’s feelings

or interpretations of events.” 58 As women’s sense of safety in the world has been shattered, so too has their sense of

narrative coherence. 59

*140 Later, however, often through working in therapy, becoming overtly feminist, or getting enough emotional
distance on the events to begin to deal with them, brutalized women revise their stories. Women who were silent begin
to speak out for the first time. Women who were silent about the violence, who at the time said that nothing happened,
or who took the blame themselves for anything that did happen, begin to tell stories of abuse. As these stories are told
with more confidence, they “may change as missing pieces are recovered. This is particularly true in situations where [the

survivor] has experienced significant gaps in memory.” 60 What the survivor is trying to do at this point is to figure out
a story that makes sense of her memories. The process of making coherence out of previously fragmented knowledge

results in adjustments in the details that are recalled or in the way the details are put together. 61 One sign of recovery

from the abuse is that women’s stories change over time. 62

Though the influence of extreme trauma on narrative consistency over time is quite pronounced, lesser traumas may
produce something of the same effect. Women who have experienced sexual harassment at work also report many of the

same symptoms as women who have suffered more extreme forms of physical abuse. 63 Women who have been “merely

hassled” also show signs of extreme stress. 64 Even Anita Hill, who *141 stayed on the job and tried to ignore the
harassment she later publicly described, “was hospitalized on an emergency basis for five days for acute stomach pain

which she attributed to stress on the job.” 65 Eventually, the accounts of what produced the stress may change as the

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details emerge from a traumatized memory and as the world feels a safer place in which to tell complete stories. 66 Or,

as Anita Hill explained, she was asked a direct question ten years later and could not lie about what had happened. 67

But we should not see this problem of shifting stories as being only a psychological response to individualized events.
Larger forces are in play that provide a social and cultural context in which shifting stories appear as a response to
sexualized threats and sexualized violence—and in which the threats and the violence are themselves displaced and denied
through the fact of delayed accounts. Psychological explanations may be able to tell us how the individually experienced
events are cognitively managed, but we need to understand more about the historical and cultural setting to understand
why those cognitive strategies are necessary in the first place.

My suspicion is that stories that shift in their focus, detail, or attribution of blame over time are a response to violence
when violence is normatively unexpected. Such violence may be very common, but it may be culturally disguised as
the rare deviation from generally accepted norms. Despite estimates that as many as fifty percent of all women will be

victims of domestic violence at some point in their lives, 68 and that nearly one in three women will be raped, 69 woman-
battering and rape are *142 still portrayed as unusual occurrences that need special explanation in the individual case.
The “normal” case is constructed as the nonviolent marriage or the unraped woman, and the battered or raped woman
stands out against this picture of normality as an exception. Because exceptions are generally explained by models that
emphasize deviance, the women subjected to “deviant” practices come under the spotlight as participants, perhaps even
willing participants, in deviant conduct. The woman is examined to see if she is to blame. For women, if violence is “not
supposed to happen” or is “not supposed to happen to me,” then it may be hard to narrate the violence credibly because
she must first explain to herself why this particular “I” was singled out for the violence that was not supposed to happen
and why this particular “him” did this. To construct such a story, a woman must narrate into some powerful cultural
headwinds, forces of opposition that appear natural, unless she can cast her experience in the light of an obvious, socially

comprehensible narrative. 70

The culturally available narratives about sexualized violence are stories of provocation, 71 passion, 72 or deranged

character or insanity, 73 *143 told against the backdrop of the assumed rationality of all conduct. People do things

for reasons, we learn to believe. In criminal law, as in detective stories, we solve the crime by finding the motive, 74 and
to find the motive, we find the reason. If a man is violent, then he must have had a reason. Perhaps he was provoked
and it is really the woman’s fault. Or perhaps it was a sign of passion and then perhaps the woman brought it on. Or
perhaps it is a “character issue” and the accused is a sexual deviant, a pervert, or a criminal type. Or perhaps he did not
have a reason, in which case, he is crazy.

Faced with the evident social competencies of many men who harass, beat, rape, or assault women, 75 the narrative
routes that emphasize insanity or serious character defects often seem blocked. Only “real rapes,” those committed by

strangers, often with weapons, against random women, 76 are arguably good candidates for the insanity narrative. That
leaves passion or provocation as available, believable narrative strategies for the routine daily violence that women often
experience. But passion narratives contradict the methodical, systematic form that abuse often takes over time. Women
who are subjected to repeated, deliberate, personally targeted harassment by men have a hard time seeing passion as the
cause when the conduct seems quite calculated. Provocation narratives put the blame back on the woman, silencing her
when she tries to make sense of what it was she did that could have produced this attack.

Suppose the woman believes the provocation story—that she is to blame after all. Women often tell stories of self-blame

and complicity, if they say anything at all, at the time that sexualized violence occurs. 77 *144 Such self-blame often

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comes through in a feeling of shame, a feeling that would only make sense if the victim were taking the blame for the

actions of the perpetrator. 78 But shame may be produced by the recognition both that her own story of abuse requires,
as a matter of cultural legibility, a prominent role for herself as the reason for the abuser’s conduct and also a knowing
judgment of what such a role would mean about herself in the eyes of others. If the victim eventually recasts her story,
the story initially told from a perspective of self-blame may eventually be replaced by a story with another narrative
organization—one that allows a subaltern cultural frame to be the organizing feature of such a narrative. Perhaps,
just perhaps, the sexualized violence a woman has experienced is actually common enough to be believed without the
requirement that she act the provocateur. Perhaps this violence is the statistical norm and not the freak exception. And
perhaps the sexualized violence women experience is the result of women’s disadvantaged and sexualized position in the
larger society. Perhaps it is not her personal and individual fault.

These later revised stories, replacing either silence or an alternative version of events, lose their social authority as a
statement of truth precisely because they are generally late in arriving. They also lose their legal power for the same
reason. Revised stories present problems in the law because one of the implicit rules juries and judges use for finding

stories to be true is the same rule that the Senate Judiciary Committee invoked in the Hill/Thomas hearings: 79 to be

believable, stories must be told immediately and must stay the same over time. 80 Truth is supposed to be fixed and
stable. Real truth doesn’t shift with time. Victims of abuse *145 may tell one story at the time of the trauma and another
story later. But these later stories are rarely believed.


If these presumptions in favor of immediate and coherent narratives are embedded in the culture of facticity outside of
formal law, then we would expect to see delayed and revised stories being attacked as false when women press claims of
sexualized violence in court. And this is exactly what happens.

A. Unreliable Women

In Reed v. Shepard, 81 for example, JoAnn Reed worked as a “civilian jailer” in the Vandenburgh County, Indiana

Sheriff’s Department, beginning in mid-1979. 82 The civilian jailer program employed people to take care of prisoners—

guarding, feeding, transporting, and processing them—as less costly substitutes for the more expensive deputy sheriffs. 83

In 1984, Reed was fired, without a hearing, for alleged misconduct in her job. 84 Reed charged, under section 1983 of

the United States Code, 85 that she had been denied due process. The district court 86 and the court of appeals 87 found
that, as an at-will employee, she was not entitled to have a hearing before her employment was terminated but that

the allegations of misconduct were serious enough to justify her termination in any event. 88 She had sued on multiple
counts, however, also charging that her employer had engaged in sexual discrimination and that she had been sexually

harassed on the job in violation of Title VII of the Civil Rights Act. 89 The story she told about *146 sexual harassment
was clearly a revised story. The court of appeals quoted the trial judge:

“Plaintiff contends that she was handcuffed to the drunk tank and sally port doors, that she was subjected
to suggestive remarks …, that conversations often centered around oral sex, that she was physically hit and
punched in the kidneys, that her head was grabbed and forcefully placed in members’ laps, and that she
was the subject of lewd jokes and remarks. She testified that she had chairs pulled out from under her, a
cattle prod with an electrical shock was placed between her legs, and that they frequently tickled her. She

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was placed in a laundry basket, handcuffed inside an elevator, handcuffed to the toilet and her face pushed

into the water, and maced. Perhaps others.” 90

“The record confirms these and a number of other bizarre activities in the jail office,” the appeals court added. 91 “By
any objective standard, the behavior of the male deputies and jailers toward Reed revealed at trial was, to say the least,

repulsive.” 92

Why, then, did the court go on to conclude that however offensive the conduct of her male coworkers was, it was not

sexual harassment? Because, the court found, the conduct was apparently not repulsive to Reed at the time: 93

*147 Reed not only experienced this depravity with amazing resilience, but she also relished reciprocating
in kind. At one point during her job tenure Reed was actually put on probation for her use of offensive
language at the jail. At the same time, she was instructed to suspend the exhibitionistic habit she had of
not wearing a bra on days she wore only a T-shirt to work. She also participated in suggestive giftgiving by
presenting a softball warmer to a male co-worker designed to resemble a scrotum and by giving another a G-
string. Reed enjoyed exhibiting to the male officers the abdominal scars she received from her hysterectomy
which necessarily involved showing her private area. Many witnesses testified that Reed revelled in the
sexual horseplay, instigated a lot of it, and had “one of the foulest mouths” in the department. In other

words, the trial revealed that there was plenty of degrading humor and behavior to go around. 94

The court emphasized that this reprehensible conduct did not happen to other women working in the jail, but only to

Reed. 95 Three women working there testified that other women had not been further harassed after they asked the men

to stop doing these sorts of things to them. 96 But apparently, Reed never told the men to stop. Why? Reed testified
at trial:

Because it was real important to me to be accepted. It was important for me to be a police officer and if that
was the only way that I could be accepted, I would just put up with it and kept [sic] my mouth shut. I had
supervisors that would participate in this and you had a chain of command to go through in order to file a
complaint. One thing you don’t do as a police officer, you don’t snitch out [sic] another police officer. You

could get hurt. 97 *148 court was a revised account, apparently inconsistent with what she and others said
about her reactions at the time. And the Seventh Circuit Court of Appeals did not believe her.

Quoting from the Supreme Court’s decision in Meritor Savings Bank v. Vinson, 98 the Seventh Circuit panel indicated
that harassment must be so severe or pervasive as “ ‘to alter the conditions of the victim’s employment and create an

abusive working environment,’ ” 99 if a claim is to succeed. But to show that this conduct was “in fact” harassing, the

victim of such treatment had to indicate at the time that she did not welcome the behavior in question. 100 In this case,
Reed’s claim could not succeed because she had not indicated while these events were occurring that this treatment was
unwelcome. In other words, contemporaneous evidence is required to establish any claim of sexual harassment, and this

requirement is hard-wired into the doctrine. 101 Judge Manion quoted the trial judge approvingly when he said that the

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plaintiff had been treated this way “ ‘because of her personality rather than her sex’ ” (as if the defendants were capable
of separating these things) and that the “ ‘defendants cannot be held liable for conditions created by Reed’s own action

and conduct.’ ” 102 Her failure to object at the time to this behavior and her attempt to deal with it by trying to act like
“one of the boys” not only defeated her ability to make a claim, but also justified the conclusion that she had brought
this treatment on herself and was therefore the person who was primarily responsible.

But the record sustains another story, one not narrated by her coworkers who were witnesses at the trial. The record
documents that Reed was physically beaten, that she was punched in the kidneys, that she had an electric cattle prod
shoved between her legs, that she was forcibly restrained by being handcuffed on numerous occasions, that her head was

shoved into a toilet, that she was repeatedly tickled, and that she was maced. 103 That was in addition to the extensive
and personalized verbal abuse to which she was subjected. Moreover, these individual facts were *149 all found to be

true by the court. 104 The court could have concluded that this evidence supported another story, one that did not erase
the violence against Reed by constructing her as a consenting woman, but rather one that presented her as a victim of

physical abuse. 105 Although Reed did not explicitly object at the time, the violence to which her coworkers subjected
her could be considered felonies anywhere other than in a “friendly” setting.

The court failed to see her claim, I believe, because her sexual-harassment complaint was delayed. Her complaint did not
emerge for the first time until after she had been fired. The judges obviously believed a revenge narrative, one in which
a bitter employee recast “horseplay” as “abuse” to get back at her coworkers.

But another narrative possibility exists here. Women who have experienced sexual harassment say, as Anita Hill said,

that they want to keep their jobs. 106 They want the abuse to stop, but they also do not want to make waves. 107 They

want to fit into the workplace environment as if they really belonged there. And to fit in, they endure the abuse. 108 It is
as if women are making deals that they will tolerate the abuse if the employer just tolerates their presence.

*150 But once a woman has been fired, that deal is off. No longer able to justify to herself that she is at least getting
something out of having put up with the abuse, she files suit claiming sexual harassment. If women’s greatest fears in
complaining about sexual harassment are that they will be fired, then the greatest barrier against bringing a complaint is
eliminated when they lose their jobs. Rather than seeing a suit following dismissal as evidence of revenge, judges might
see such a suit as the evidence about what the implicit terms of continued employment were. The understandings women
have about the conditions under which they work are disturbed by their dismissals. If courts looked at the conduct,
like the persistent and abusive conduct to which JoAnn Reed was subjected, and they see only consent, they should
ask themselves just why a woman would consent to be treated like that. Perhaps then they would see that the apparent
consent reflects a lack of bargaining power and a lack of options rather than the active approval that signifies free choice.

By locking her into a revenge narrative on the sexual-harassment claim, Reed’s coworkers and the judges in the Seventh
Circuit were effectively penalizing her twice: once for appearing to consent to the abusive treatment in the first place,
and again for changing her mind about what it all meant. Reed, in this revenge narrative, then became the problem as
the court shifted attention away from the conduct of her male coworkers to Reed’s own actions and accounts. It was
her conduct in the first place that allowed the harassment to occur, and it was her desire for revenge after the fact that
brought the case into court. Her male coworkers were presented as accessories to a story in which the active agent was
Reed. It was Reed’s motives, actions, and stories that the court took to be the problem. She may have come into court
claiming victimization, but she left the process having become the aggressor.

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How did this inversion occur? The story JoAnn Reed told in court was inconsistent with her coworkers’ interpretations
of her actions at the time. Her coworkers’ readings of her actions on the job were presented as if those interpretations

were her contemporaneous accounts of the events in question. 109 Reed’s own story, when she finally got to tell it in
court, *151 was therefore presented as revised, changing over time from a story in which she appeared to enjoy the
abuse, to a story in which she abhorred it.

When stories are revised, judges and juries use that very fact as evidence that the later story is false, even when the victim
did not grasp the chance to tell the first story herself. In addition, victims whose accounts are revised can be blamed for
bringing everything on themselves because their narrative instability makes the later story unbelievable. Such narrative
instability casts doubts on the motives of the woman who comes late to her story of blame, and she becomes the aggressive
initiator of trouble for others.

While this pattern is the general rule, certain special cases exist in which revised stories can be presented as credible. Such
exceptions include cases in which: (1) multiple women establish a pattern of conduct on the part of a particular man; (2)
corroborating physical evidence exists to back up the woman’s later account; and (3) an expert reconstructs the woman’s
initial story as a delusion for psychological reasons. It is to these exceptions, the exceptions that demonstrate the solidity
of the implicit rule against revised stories, that we now turn.

B. Safety in Numbers

If women are to be believed when they revise their stories, they have a better chance if they find other women to do
the same. Reconstructing as nonconsensual a sexualized relationship that appeared consensual at the time is very hard
to do credibly. Women typically find that they have to establish that their experience was part of a pattern that other
women experienced as well. Just as Anita Hill would have been more credible if a parade of former employees of Clarence
Thomas had come forward with similar complaints, other women claiming abuse, harassment, even rape, find that there

is greater narrative safety in numbers. One example can be found in Daly v. Derrick. 110

*152 In September 1977, Maura Daly was fifteen-years old:

Before the start of classes [at a high school in California], [Maura Daly] attended a retreat designed to
encourage Alternative School students and teachers to get to know each other. [Tommy] Derrick, who
taught psychology, human sexuality, and social studies, also attended the retreat.

One evening, Derrick and several students were giving each other massages. As Derrick massaged Maura,
he began to touch her in a sexual manner. His sexual overtures to her continued during the retreat, and
she eventually acceded to his request that she orally copulate him. He impressed on her the need to keep
their relationship secret.

Following the retreat, Derrick had sexual contact with Maura after school once every few weeks, either at
his home or inside his van. Although she was happy to be receiving special attention from a teacher whom
she liked and admired, she felt uncomfortable with their sexual activities and consequently experienced

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confusion. In the spring of her sophomore year, she told Derrick she did not wish to see him any more.

After that he sought no further sexual contact with her. 111

During the time that their sexual relationship continued, Maura described Tommy as her boyfriend:

The relationship was her first experience of romance and love…. He repeatedly told her that she could make
her own decision whether to be sexually involved with him, thereby inducing her to believe that she was
equally responsible for their relationship. In fact, however, Maura was overwhelmed by his attentions due
to her desire for a replacement for the father she had earlier lost through divorce. She did not perceive his
conduct as wrong in any legally actionable sense; the only injuries of which she was aware were pain at
the distance from her that Derrick maintained at school, jealousy at Derrick’s sexual attentions to other
students, and from time to time a sense that, *153 rather than being a true friend, he was using her to

satisfy his own sexual needs. 112

In November 1986, Daly sought therapy because she was having “sexual difficulties” with her current boyfriend. 113

In the course of therapy, she mentioned that she had been “molested” by a high-school teacher. 114 “Sometime around

March 1987, she began to realize how painful and damaging her relationship with Derrick had been for her.” 115 She
filed a tort suit against him for damages for the harm he had caused her.

This case is one of a growing number now being brought as a result of the “delayed discovery” of childhood

molestation. 116 While most of the cases are not brought against teachers, but are instead brought against male relatives,
the gist of the complaint is the same: A minor, usually but not always female, is pressured for sexual favors by a man who
has some power over her. She endures the molestation in silence, because the man tells her to be quiet. She may even feel
so compromised that she actively engages in preserving the secrecy because the revelation of the activity implicates her
as well. Because she does not talk with anyone else about it, she can be influenced strongly by the man’s narrative about
what is happening. Although she may feel the sexual advances are inappropriate, she does not know how to articulate
this as a conscious matter. Sometimes the girl actively claims to enjoy the sexual encounters at the time, valuing the
attention they bring. Years later, almost always through therapy, the now-grown woman “learns” for the first time how

to name what happened and what these events have done to her. 117

*154 In Daly, the court was called upon to decide whether the lower court had been correct in throwing out the case on

grounds that the statute of limitations had tolled. 118 Ruling that there was a triable issue in the possibility of a delayed

discovery of a material fact, the court let the case proceed. 119 But given the judges’ emphasis that a new California
statute made them do it out of consistency, it is doubtful that the court would have allowed this complaint to proceed

without the push from the legislature. 120

The Daly case presents a stark case of a revised story. Daly clearly thought at the time that her relationship with Derrick
was romantic, consensual, and wonderful—usually. Only later did she come to believe that this relationship was abusive
and that he had taken advantage of her innocence and immaturity. Daly starkly presents a case of a complete reframing,
in which consent at the time is later cast as consent that was not “real.” Though the court allowed her case to proceed,
Daly would probably have had a hard time establishing her initial nonconsent. But she had help.

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As it turned out, two other women had experienced the same treatment from Derrick while he was their high-school
teacher. In fact, all three of these women were friends in high school and had not realized that Derrick had a sexual
relationship with each of them at the same time. *155 Only after Maura Daly had gone into therapy and came to see
Derrick’s treatment of her as abusive did Daly’s mother then call around and find that two other high-school classmates
of Maura’s had similar stories to tell. They later joined the lawsuit.

Does this change the credibility of the revised narratives of each of the women? For most people, it probably does.
But why should three women revising their stories in the same way be more believable than one woman doing this
alone? In the case of a lone woman accusing her former lover of abuse, it is easier to tell a stock counter-story about
a particular relationship gone sour. But when three such relationships exist that were all being maintained at the same
time in an apparently monogamous culture, then each woman appears entitled to adjust her story to take into account
that Derrick was misrepresenting to each of them just what the specific relationship was at the time. Derrick’s violation
of another norm, the norm of monogamy, makes the violation of other norms about abuse seem more plausible. He can
be constructed as a deviant all around, not the innocent man whose former lover now takes advantage of a convenient
feminism to turn him into a monster after the fact. With three women providing evidence of collective misrepresentation,
Derrick looks less like a poor guy with bad judgment in relationships and more like a predator.

Several women, each changing their stories in the same way independently, seem more believable than one woman who
does this alone. The sheer volume of the revised stories changes the credibility of each one. Derrick’s conduct becomes
part of a pattern that each individual woman could not have seen alone. This new story is a different story, told for the
first time when the narratives of the three women intersect. Taking the three relationships together, against backdrop
assumptions about monogamous sexual affiliations, Derrick looks less “normal” and the basis of a deviance narrative is
laid. There is a way to distinguish him from ordinary men, at least ordinary men in their public presentations. Nothing
about the norms of ordinary male conduct is threatened by allowing these women’s accounts to be believed as revised.
By finding safety in numbers, women may be able to have their revised stories appear credible.

C. Corroborating Evidence

Revised stories may also be believed when other evidence, preferably physical evidence, corroborates the changed story.
Corroboration requirements may be formally gone in rape law, but their residue remains *156 in the habits of belief.
If a revised story is to be credible, it needs something more than itself as proof.

For example, in Simmons v. State, 121 the Indiana Supreme Court upheld a rape conviction even though the victim

told inconsistent stories. 122 Significantly, however, in both accounts she claimed she was raped. 123 First, she said that

she had been taken from the Payless Supermarket to the Grandview Golf Course where she was raped. 124 Later, she
said that she had been taken from the Anderson High School parking lot to some nearby railroad tracks where she was

raped. 125 She testified at trial that her statements were inconsistent because the defendant forced her to “tell a different

version of the incident that he furnished to her.” 126 With the introduction of expert testimony from a psychologist
and from a social worker to the effect that rape victims often feel under the sway of a rapist even after he is no longer

physically present, 127 the defendant was convicted of rape. 128 But the experts did not accomplish this extraordinary
feat alone. It helped that the woman had never seen the defendant before the attack, that she had been abducted with
the understanding that he had a gun, that he had threatened her with a knife and a heavy pipe during the rape, and

that the defendant also stole her car. 129 But crucially, the police found the pipe with which the defendant had allegedly

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threatened her in the grass by the train tracks. This was, in short, a “real rape” 130 backed up with physical evidence of

the pipe and the stolen car. 131 Her revised story did not stand alone.

When a revised account changes some of the elements of the initial story that one would expect to remain invariant
across descriptions, the account generally becomes much less credible. In this case, the woman originally said she left

voluntarily from the Payless Supermarket parking *157 lot, 132 and then later said she was abducted from the Anderson

High School. 133 The “voluntarily left” and “abducted” descriptions can be seen as two plausible interpretations of the
same physical events, perhaps relying on different interpretations of her mental state that may not have been easily

visible to others. But the Payless Supermarket parking lot was nowhere near the Anderson High School, 134 and so
those descriptions seem flat-out irreconcilable, not just a matter of variable interpretation. Had there been no further
corroborating evidence, this inconsistency would probably have been fatal to the credibility of the story.

Why is this? Often revisions of the latter type (“flat out”) are used as evidence for inconsistencies of the first type (“matter
of interpretation”). When a witness reveals inconsistencies in parts of descriptions that are usually matters of general
agreement among observers (like where we are physically located when something occurs), this is taken as evidence that
she must also be suspect in matters about which there would not necessarily be general agreement among observers (like
the mental state of the speaker). Stories look suspiciously reconstructed when some facts that generally produce similar
descriptions across observers appear to have been altered since the first account.

But much can be forgiven when physical evidence exists to back up the later story. With corroborating evidence, narrative
instability can be “resolved” one way or another. Credibility of the lone woman may be bolstered with some help from
physical evidence but otherwise, women’s narratives are suspect when they change over time.

D. Expert Reconstructions

Sometimes a lone victim’s changed story of sexualized abuse can survive scrutiny, even without corroborating physical
evidence. But not without some assistance. In recent years, credibility of revised stories has been established through
the testimony of expert witnesses. These expert witnesses generally testify that the victims of sexualized violence suffer
from a form of post-traumatic stress disorder and therefore have first reactions that are not to be trusted, allowing later

accounts to be believed. In State v. Frost, 135 the expert testimony that was introduced made the *158 victim’s revised

story credible to the jury, and later to the judges on appeal. 136

Early one April morning in 1986, L.S. was still sleeping when her former boyfriend, Gregory Frost, tapped on her

shoulder. 137 He had broken into her house. 138 As she started to wake up, he started to yell at her. He hit her. 139 Their

baby began to cry, so L.S. picked up the child and ran to the front door to escape. 140 Before she was able to open the

door, Frost caught up with her and cut her arm deeply with a razor-edged box cutter. 141

The relationship between Frost and L.S. had been plagued by Frost’s frequent outbursts of violence against L.S., and
she estimated that he had hit her at least once per month during the time they had been romantically involved, starting

on the second day that they knew each other. 142 Police testified that she had called them to the house at least nine times

to stop his violence. 143 After suffering through three and a half years of battering, L.S. had left Frost to go to live with

her mother. She obtained a restraining order to keep Frost away from her and the baby. 144 Eventually, Frost was sent

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to prison for theft from another person. L.S. had been responsible for his arrest in that case and, on the day he broke
into her house and cut her with the razor, he had just been let out of prison. His first act as a free man was revenge.

Knowing how out-of-control he could be, L.S. tried to talk with him, eventually suggesting that they have sex because

“that would calm him down.” 145 After they had sex, they went to the place where L.S.’s mother worked to get her car
keys to go to the hospital to have the wound treated. L.S. asked her mother not to call the police. At the hospital, L.S.
said she had cut her arm on the refrigerator. Her arm needed four sutures underneath the skin and eleven stitches to
close the wound.

*159 After L.S. was treated, she, Frost, and the baby went to Frost’s mother’s home to get money, and then went to a
park where they drank beer and talked together. Eventually, they went back to L.S.’s home again. L.S. was supposed to
pick up her mother up at work, but never did. When L.S.’s mother arrived, angry at having to find another ride home, she
and L.S. got into such a huge fight that neighbors called the police. When the police arrived, they saw Frost running from
the apartment wearing no shoes, socks, or shirt. They recognized him as the person against whom a restraining order

had been issued, and they arrested him. 146 They charged him with contempt of court for violating the restraining order,
as well as burglary for breaking into the house, assault for stabbing L.S., and various weapons charges for possessing

the razor. 147 Notably, he was not charged with rape. He was convicted on all counts. 148

At the trial, Frost had claimed that L.S. had consented to spend the day with him, which he thought should cast doubt on

any claim that he had broken in and attacked her that morning. 149 After all, Frost argued, why would this woman spend
the whole day with him unless she wanted to? To respond to this, prosecutors introduced expert testimony to the effect
that L.S. was suffering from Battered Woman’s Syndrome, an identifiable medical condition that was characterized by
the court as follows:

The battered woman places herself in the role of a victim. She blames herself, thereby becoming even more
vulnerable to the point where she almost expects it. She is reluctant to tell anybody about what occurs,
usually for a variety of reasons. She may be embarrassed, the man might keep her isolated from others,
she may hope the situation will change, or she may fear it will get worse if she reports anything. Most
significantly, the battered woman cannot just walk away from the situation. She is emotionally dependent

on her “man” and is often involved in a love-hate relationship. 150

*160 The effect of the expert testimony was to provide a context within which a jury could believe that all the things
L.S. said on the day of the attack were motivated by fear. Such a fear-induced account could be overridden by a revised
story later. Without this expert testimony, however, a jury might reasonably conclude, as Frost tried to argue, that she
was now trying to get Frost in trouble because they had had a falling out after a pleasant day. After all, L.S. presented
repeated and consistent explanations on the day in question about how she was okay, how she had simply cut herself on

the refrigerator, and how no one should call the police because she was fine. 151 But the specific violent history of the
relationship between Frost and L.S., as well as the use of expert testimony, convinced the jury that Frost had committed

these acts and that L.S. had not consented. 152 On appeal, the admissibility of the expert testimony so crucial to the

prosecution’s case was upheld. 153

Expert testimony can be very helpful to women in these situations. But it comes at a price. Such testimony is effective
with jurors because it gives them an explanation for a victim’s conduct at the time in question by saying she is suffering

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from a form of mental illness. The victim may have thought things were going to get better; she may have thought he
loved her; she may have thought that she wanted to be with him. But she was wrong, deluded, and not a good judge of
these things at the time. As a result, whatever she may have thought happened on the day in question can be dismissed
as the result of temporary mental incapacity. But this sort of transformation from a credible first story to an even more
credible revised story is very hard to do without an expert. The expert allows a woman’s revised story to be believed, but
at the cost of making her out to be a woman who could not know her own mind.

In this case, L.S. apparently wanted Frost convicted for these crimes. But she also visited him eleven times while he was

awaiting trial back in prison. 154


So, how do judges and juries know when they have found the truth? It is an astonishing accomplishment that courts as
well as ordinary *161 individuals manage to operate on a daily basis as if the bases of factual judgments were clear and
solid. While the idea of truth has been a contested subject among philosophers for as long as philosophy has existed,
the idea of truth in daily life seems to generate much less debate. When asked to find “the facts” of a case, judges and
juries do not puzzle over the meaning of that instruction. Why? The simple answer is that judges and juries, spectators
and litigants, ordinary folks in their daily lives and specialists in creating knowledge, “know truth when they see it.”
Within our own system of truth-finding, some cases may be easier and others harder, but the idea of truth itself is rarely
in doubt. If the truth is unclear in a particular instance, default rules, like rules about burdens of proof or about how
certain one has to be to convict, are employed to settle matters provisionally so that cases can be resolved with certainty.

American courts rely on the widespread facility of ordinary citizens in reasonably workable practices of truth-finding.
The jury system is premised on the idea that citizens, selected to serve on juries, can listen to the presentation of evidence

and work out “what happened” independent of any specialized knowledge of the law. 155 Lawyers and trial judges
generally receive no special training in determining the credibility of evidence or in discerning truth, and so they too often
draw on socially situated, unremarkable methods for determining “what happened.” It is generally assumed that anyone
who is not connected with the parties to the dispute and who does not have a special interest in the outcome of the case
can figure out what to believe from evidence presented in a trial without specialized instruction. This is done because in
the business of the evaluation of evidence, almost everyone is thought to be enough of an expert to be entrusted with
finding facts.

But as we have seen with the examples explained above, truth-finding is a socially situated practice. We all have a set of
interpretive conventions, practices of truth-finding, that tell us when a particular story seems more credible than another
and when one witness appears to be telling the truth and another seems to be lying. Most of us engage in the evaluation
and construction of truth on a routine basis, finding the activity generally nonproblematic and straightforward. Never

mind that we are often dead wrong in assessing credibility, regardless of our experience and professional training. 156

Most of the time, we are successful enough or *162 blind enough to the consequences of our inaccuracies not to
reevaluate our practices. Whenever our failures call attention to our inadequacies in this regard, we engage in a patch-
up effort to work out what went wrong in the particular case, but we rarely rethink our entire scheme for evaluating the
evidence that daily life presents us. Furthermore, when we have to deal with the law, whether as professionals who do
this all the time, as jurors or litigants who are called upon to do this on rare occasions, or even as observers or scholars
of the judicial process, we bring our interpretive conventions with us.

So, what do people operating in the legal process see when they are presented with evidence? What interpretive
conventions do judges and jurors invoke when called upon to figure out “the facts” of cases?

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The attribution of truth by judges and juries depends on properties of the stories witnesses tell. 157 Of course, this
attribution goes on against a backdrop of cultural expectations about what sorts of stories are credible in the first place,
and those expectations are dependent on visions of normality and aberration, drawn from experience and from widely
available stock representations. But judges and juries decide whether a witness is telling the truth by evaluating how
the story is constructed rather than by working out whether the story has a “real” referent. Some of the properties that
matter in deciding whether stories are believable include internal consistency, narrative coherence, reliance on “hard” or
physical evidence, and perhaps most importantly, the stability of the storytelling over time.

Given that most people have a naive sense that language is supposed to pick out things in the world, this view that
the credibility of stories is generally determined by reference to the internal properties of the stories themselves may be
disturbing. But it is not new. Clifford Geertz is one teller of a tale that reports a cosmology in which the world rests
on the back of an elephant, which stands on the back of a turtle. When asked what the turtle stands on, an informant

answered, “[a]h, Sahib, after that it is turtles all the way down.” 158 This is not exactly a comforting answer if one wants
to believe that some bedrock exists somewhere. But in stories, as with the elephant and its turtles, it is narrative all the

way down. 159 Narratives often become their own best evidence.

*163 Much historical reconstruction, like the reconstruction in courts, proceeds from narrative evidence. Historians
most frequently work with texts and they find themselves composing their own narratives to make sense of the narratives
they have encountered. Even those historians who work with physical evidence, like archeological discoveries or other
tangible bits of a distant past, make sense of them by placing them in the context of narratives. But saying that historical
reconstructions are often narratives “all the way down” is not to say that such reconstructions are fictional. One can
have a sense of faithfulness to the records and still be constructing narratives of narratives of narratives as a record of
“what happened.” Though it is notoriously difficult to draw any distinct boundary between fictional and nonfictional
narratives, one can credibly claim to be constructing a narrative of evidence one has not invented out of one’s imagination.

This is what passes for fact, both in historical research and in courts of law. 160

Why is this? In courts of law, judges and juries cannot do what a correspondence theory of language would have them
do; they cannot hold up testimony against events in the world to see which versions “match” better. The most obvious
reason for this is that the events are long over before the cases come to trial and the “reality” in question is not around to
hold any descriptions up against, if such a thing could be done. Some procedures would have to be devised for working
out when a description corresponds to reality and then those procedures, not the “matching,” would be doing all the
work. Most of the time, the traces left over from historical events are accounts by people who were present at or otherwise
involved in the event, and such accounts—narratives—are often the best evidence available.

Even if the descriptions were being constructed simultaneously with events or if the events in question were preserved

in some other form—as happened in California v. Powell, 161 in which a citizen’s videotape *164 recorded several Los
Angeles police officers beating motorist Rodney King—judges and jurors could not work out which single description
best “matched” the world. The whole idea of matching descriptions against the world is misleading because, apart
from being metaphorical, it assumes that there is only one perspective, only one point of view, only one ideology, no
room for multiple readings, and no potential for disagreement. In short, it assumes no problem with understanding
how accounts as socially situated cultural products relate to evidence of the world. But particular “true” stories and

particular descriptive statements are often selected from among a set of arguably accurate versions of reality 162 —it is
just that other descriptions in the set give very different impressions about what is going on. The vexing question is not
just whether the descriptions are accurate in some way, though it is crucially important to screen out lies, but rather,

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how it is that some particular description instead of some other description comes to be forwarded as the authoritative

version of events. 163 This raises questions of power and ideology, of the “situatedness” of the descriptions that pass for

truth, and of the social agendas they support. 164

In law, these questions are not explicitly raised as problems, though practitioners know that they are crucially important.
Questions about multiple versions of reality are largely ignored in the subject of evidence, in which the greatest concerns
are limits to the sorts of statements that might be taken as accurate. Rules of evidence screen out types of information

that are thought to be misleading, 165 prejudicial, 166 nonprobative, *165 167 or just plain unreliable. 168 But the rules
of evidence themselves are at best probabilistic judgments about categories of information and their likelihood of being

false or irrelevant. 169 Following the rules of evidence is certainly no guarantee of finding truth, especially because most
of us frequently use legally excludable evidence in making judgments outside of courtroom settings without apparently
being wrong much of the time and because legally admissible evidence may well be unreliable. Rules of evidence proceed
on the assumption that individual bits of information can be screened out as unreliable, misleading, or untruthful and
that any “reasonable” assemblage of what is left counts as truth. But this is at best a hopeful fiction.

For one thing, rules of evidence provide no guidance about what to do once particular bits of information are admitted as
evidence. In practice, judges and juries do the best they can to evaluate evidence the only way they can—through assessing
the way the stories hang together with what else they know about the world and through spotting key characteristics in
the stories that they hear, characteristics they believe are signs of truth. Judges and juries cannot do anything else. They
have to use ordinary conventions of truth-finding.

Given the dependence of law on these ordinary conventions of truth-finding, it is worth asking just what these ordinary
conventions are, for several reasons. First, the outcomes of individual cases are highly dependent on what is found to be
“the truth” in that instance, so the integrity and reliability of the judicial process depends on these factual determinations.
How they are made and what conventions they invoke should be made explicit if law is to be justifiable to those who

are subject to it. 170 Second, interpretations of fact and law are not easily separable activities in the process of legal

reasoning, 171 and so any theory of *166 judging needs to include some account of the interpretive conventions used

in the construction of facts to adequately represent the process. 172 Third, law often pretends to be above politics,
prejudice, and partiality by virtue of the principled nature of its practices in judging. Insofar as a large part of that
practice depends on unexamined and possibly prejudicial conventions for assessing the facts on which judicial judgment
depends, the practice of judging can hardly be said to be above these “contaminating” influences. So, we should explore
these influences before relying on the assumption that law manages to sanitize bias through its appeal to principle.

In addition to these worries about abstract legal legitimacies, a more immediate practical issue is involved in working out
whose conventions of truth-finding are to be invoked when more than one set of conventions applies in the social settings
that a given legal system embraces. If we have learned anything in recent years about the operation of social practices, it
is that they are usually specific to time, place, social location, and embodiment in the lives of particular people. Saying
that “we” have a set of conventions for truth-finding begs the questions of who the “we” are and whether “we” share

these practices at all. 173 So, working out how information is constituted as fact or, at the risk of creating an unwieldy
neologism, how information is “enfacted” requires both looking at the way conventions of practice are historically,
socially, and culturally situated in the lives of particular people and asking whose truth is being found when jurors and
judges find it. But when we look more closely, we see that the whole metaphor of “finding” rather than “constructing”
the truth relies on the assumption that truth is “out there” to be located rather than constituted through the operation
of social practices. This way of talking about truth shows how the “facticity” of a truth-claim must be presented as if

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it is compelled by the “external-ness” of its referent rather than compelled or allowed by the agreement on conventions
of description.


With these theoretical considerations in mind, we can now return to the specific problem of revised stories. If judges and
juries generally believe that the first versions of stories are true and that later versions must be suspect unless some special
reason exists to distrust the earlier version, what must their picture of truth look like? And how adequate is this picture
to the complicated world that judges and juries are trying to represent through the construction of the facts of a case?

To believe initial versions over revised versions, people must have an image of a precarious and fragile truth that
decays over time or is subject to the continual risk of subsequent distortion. As a result, information gathered before
these inevitable processes of decay and distortion set in is considered to be especially important in figuring out “what
happened.” If accounts seem to change over time, it must be because something other than the initial, accurate perception
of reality is being incorporated into the story.

Some basis for this belief exists, as the work of Elizabeth Loftus on eyewitness testimony makes clear. 174 People do
revise their accounts based on new information that insinuates itself into the original memory as if this later information
were part of the initial perception. But the possibility of such reconstructions should not eliminate the possibility that
victims, particularly those who have been traumatized by the events for which they now want to seek legal redress, may
be reinterpreting their experience in a new frame—one that in many ways is more adequate than their initial self-blame
and denial.

The distinction people make between initial stories and revised stories obscures an important feature they both share.

They are both narratives, and as such, they both represent strategies for organizing and making sense of evidence. 175

Neither story represents “perception without conception.” The first version of any story is not merely raw material,
processed by the mind without interpretation, that revised stories take and then shape through interpretive processes
absent in the first version itself. As Wittgenstein showed in the duck-rabbit demonstration, “seeing” initially is often

“seeing as.” 176 We do not first see things “as they are” *168 and then interpret them. We see with the interpretive
frameworks we bring to events as much as we see with our eyes. When we change interpretive frameworks, especially
when the new frameworks create new accounts of blame, others may see us as making things up.

For example, the woman who sees her abusive husband as revealing his love for her through his violence is not processing
raw material that is then later interpreted through consciousness-raising. She is interpreting her husband’s actions as they
are happening—and those initial interpretations feel like untainted perception. But her initial perceptions are already
interpretations, though they would be different in their organization from the perceptions of her husband’s defense lawyer
or a feminist observer seeing those same events unfolding before their eyes. The difference in accounts that the battered
woman and the feminist lawyer would give of this event is not the difference between truth and falsehood. Instead, it is
the difference in the interpretive framework through which the events are seen in the first place.

Different versions of events may be related by different people witnessing the same thing at the same time. For identical
reasons, different versions of events may be related by the same person who sees what once happened in a new light
that only switches on when some time has elapsed since the event. But why should we favor the first framework that the
victim happens to have over another framework that might be brought to bear on the event with more reflection?

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The puzzle is deepened when we note that most people believe that reflection aids accuracy in everything but reports of
perception. Generally, people believe that considered preferences are more reliable than preferences listed off the top of

one’s mind. 177 And ethical judgments that have been weighed for a period of time are better than “snap judgments.”
Even academic papers that have been through revisions are considered better, more polished, than those that have not
been through the process of revision. Why is it, then, that reports of “facts” are not similarly thought to be improved
with reflection and thought?

We learn to describe first impressions as true because they appear to involve no conscious alteration, even though there
may be a physical basis for other reports of those perceptions. Nelson Goodman reports that when most of us report
seeing a round table from the side, we still describe it *169 as round, even though our eyes are preceiving the shape as

oval because of the angle of vision. 178 Clearly, there is a large element of construction, however rapid and implicit, even
in the most apparently uncontroversial descriptions.

What this all amounts to is that first accounts appear to be simply true as if perception were somehow free of organizing
concepts and categories that are themselves social products. First versions are the “obvious” way to describe what has
happened, while revised versions seem to involve conscious hard work to “make sense” of what has happened and are
therefore more obviously contestable. The accounts we take to be “simply true” feel as though they are “straight” read-
outs of unbiased perception. The accounts we arrive at by revising our stories to “make sense” of things seem to pull
away from those initial perceptions and are consequently distrusted.

But this contrast between a picture of pure and untainted perception and an alternative picture of a contaminated,
altered, or revised account should now appear naive. If all narratives are constructions and all descriptions are socially
situated, making use of concepts and categories that are made available through the cultural location one occupies, then
why should we favor the first framework that this particular narrator happens to bring to the description of events?
In the context of sexualized violence, in which a victimized population of women has come to see such abuse as a
persistent feature of daily life, saying that initial stories are the only believable accounts amounts to saying that a potential
defendant’s guilt or liability rests on the defendant’s choice of victim. Women who have accepted continuing victimization
with the resignation of self-blame and denial can be abused without anyone being able to gainsay such women’s initial
narratives of complicity. When women learn that they do not have to put up with such treatment, however, they see their
own pasts differently. But such reconstructions are then discredited as lies.

This is a general problem in the believability of narratives. The preference for first versions of stories looks like a
neutral rule. But it falls particularly hard on women. As this article has shown, experience, social-science research, and
observation of the legal process tell us that women who are the victims of sexualized violence often need to take time to
understand what has happened to them. This is because women have learned both to put up with sexualized violence as
a feature of daily life and to blame themselves for it as a first-pass explanation. Courts’ *170 exclusion of revised stories
works disproportionately against women because women are disproportionately the victims of a socialization that masks
the immediate recognition of sexualized abuse as abuse. Overcoming the first reactions takes time—but it is precisely
these delays that courts generally suspect as evidence of lying. The first stories we tell are not constructed in the absence
of frameworks that help us to make sense of what has happened; they are simply constructed with our most uncritical
frameworks—frameworks that may or may not be the ones we would think best to invoke upon further reflection.

Women’s initial reactions in sexually abusive situations may lead others, particularly the men with whom they interact
and those who judge women’s reactions in court, to conclude that women enjoy the abuse and are encouraging the
conduct. In a study of rape victims in Chicago, for example, I was surprised to find out how many women reported that
they attempted to fight off their attackers by crying, by telling the rapists their life stories, and by apparently agreeing

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to sex to lower the violence level in the assault. 179 Each of several of the women in our sample of nearly 100 women
said she began to tell the rapist, often a stranger, intimate details of her life in the attempt to get him to see her as a
human being. If he saw her as a person, she thought, then he could not do this to her. Many women reported crying and
bargaining rather than punching and screaming. Talking, crying, and bargaining very rarely worked, but women viewed
these strategies as aggressive attempts to defend themselves while the rapists no doubt interpreted these reactions as a
lack of meaningful resistance. In the absense of bruises and scratches that come with a physical struggle, these women
often had great difficulty proving their nonconsent in court. Their first reactions were constructed as initial narratives
of consent. As a surprising number of first reactions revealed in this study of sexual-assault victims, women are afraid to
stop being polite, even when they are being attacked. This may be because women learn to be concerned with maintaining

relationships and keeping them from breaking apart. 180 But regardless of the source of these reactions, they make
women’s later narratives of rape unbelievable.

In cases of sexual harassment, what victims seem to want most is for the conduct to stop. They do not want to leave their

jobs, to file formal grievances, or to rip up their lives to avoid what was not their fault to *171 begin with. 181 Women

often do not report sexual harassment, hoping it will go away. 182 By the time they decide to fight it, it is too late. The
initial story that they were consenting, or at least not objecting, has already stuck.

If we have a legal system that uses rules of evidence and principles that are hostile to revised stories in judging truth,
then women will continue to be victims in court when they press cases of sexualized violence. But the few revised stories

that are currently accepted by courts are not an unqualified good thing in empowering women. 183 In the absence of
multiple complaining witnesses and physical corroborating evidence, the revised stories that courts currently accept are
generally the versions urged by expert testimony, not just by the woman herself. But the presence of experts may remove
a woman’s individuality and unique voice by substituting a statistically derived average experience that women typically
share for the detailed, potentially idiosyncratic experiences each of us has. What a woman gains in solidarity with other
women as a result of being lumped into the averages, she may lose in distinctiveness if her own experience veers from the
statistical norm. As the women’s movement succeeds in breaking women free from a single conception of femininity, such
statistical averages will become less and less accurate as descriptions of particular women’s experiences. The reliance on
expert witnesses is immensely useful as a transition device between the world today and a world in which women’s stories
have more power as a source of fact. In the future, however, reliance on such witnesses may be seen as urging another
single oppressive image of how women should react to sexualized violence on women who have diverse experiences and
diverse reactions.

The use of expert testimony currently allows a woman to win a case against a man by having a “qualified person” testify
that she was suffering from trauma or delusion and thus was not in her right mind when she blamed herself, acted from
numbness like nothing had happened, tried to *172 show her deluded love for her attacker, or changed her story. What
she really meant (only the expert can say) was something else. Certifying the later stories, experts succeed in establishing
their own credibility while establishing that women are individually unstable at the time of abuse. Such psychologizing of
the problem avoids recognition of the scale and scope of sexualized violence against women. Understanding the narrative
strategies of women as the result of social and cultural forces larger than the individual case, as this article has tried to
do, reempowers women to talk in their own voices and not just through the voices of experts.

Not all revised stories should be believed. Nor should all first drafts of accounts be immediately accepted either. Strategies
of belief need to be more complicated than that to do justice to the variety of knowledges present in any given society.
Understanding how the stories are socially constituted as believable in the first place is one important step in the process
of making the legal system a force for the liberation of women from sexualized violence. At a minimum, fact-finders need

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to understand that early narratives about sexualized violence may reveal not some deeper truth, but rather the effects
of oppression on women. Not allowing women to reinterpret their own experiences as they learn to oppose the abuse
is a way of furthering that oppression.

a Arthur F. Thurnau Associate Professor of Political Science and Public Policy and Adjunct Associate Professor of Law,

University of Michigan. I would like to thank Jane Bennett, Jerome Bruner, Sally Burns, Fernando Coronil, Peggy Davis, John
Kitsuse, Rick Lempert, Jack Meiland, Francois Rochat, Roger Rouse, Ted Sarbin, David Scobey, Peter Seidman, Richard
Sherwin, Julie Skurski, and Scott Styles as well as seminar participants at the New York Law School, the New York University
Law School Clinic, the Michigan Institute for the Humanities, the Stanford Humanities Center, and the Chicago-Kent College
of Law for making more comments of a more fundamental nature than I could possibly have taken into account in writing
this paper. The first version of these ideas was presented at the annual meetings of the American Political Science Association
in August 1991, another version was written for social psychologists as Kim Lane Scheppele, Practices of Truth-Finding
in a Court of Law, in CONSTRUCTING THE SOCIAL (Theodore Sarbin & John Kitsuse eds., forthcoming 1993), and
this represents yet another rethinking of those ideas. Those of you who have seen the earlier versions will have to judge for
yourselves whether to believe this revised version, which may not yet be the end.

1 Susan Estrich argues that the rape reform statutes did not accomplish as much as feminists thought they would. Instead,
acquaintance rape still is hard to prosecute. See SUSAN ESTRICH, REAL RAPE 13, 80-81 (1987); see also Kim Lane
Scheppele, The Re-Vision of Rape Law, 54 U.CHI.L.REV. 1095, 1097-98, 1102 (1987). In sexual-harassment cases, judges
have repeatedly found that the particular instances of alleged abuse were not serious enough to warrant a successful claim
of employment discrimination. See, e.g., Rabidue v. Osceola Ref. Co., 805 F.2d 611 (6th Cir.1986) (finding that the woman
could not succeed in her sexual-harassment claim, despite vigorous dissent arguing for a “reasonable woman” standard). In
Britain, Parliament passed a statute explicitly intended to allow women to get temporary restraining orders (TROs) against
their battering husbands, only to find that the courts interpreted men’s common-law rights of property in their homes as
narrowing the effective range of cases in which such TROs were obtainable to only those cases in which the woman alone
INTERPRETATION 356-73 (3d ed. 1991).

2 Although the Model Penal Code draft of 1980 incorporated a corroboration requirement, see MODEL PENAL CODE §
213.6(5) (Official Draft and Revised Comments 1980), 35 states had already eliminated their corroboration requirements, and
eight others had limited the requirement. See Note, The Rape Corroboration Requirement: Repeal Not Reform, 81 YALE
L.J. 1365, 1367-68 & nn. 16-18 (1972).

3 Forty-nine states and the federal government have enacted rape-shield laws that limit the admissibility of evidence about a
victim’s prior sexual history. See James A. Vaught & Margaret Henning, Admissibility of a Rape Victim’s Prior Sexual Conduct
in Texas: A Contemporary Review and Analysis, 23 ST. MARY’S L.J. 893, 895 & nn. 9-10 (1992); see also Harriett R. Galvin,
Shielding Rape Victims in the State and Federal Courts: A Proposal for the Second Decade, 70 MINN.L.REV. 763, 765-66
(1986) (examining how different states approach rape-shield legislation and proposing an alternative legislative solution that
preserves the underlying rationale of rape-shield laws as well as the defendant’s constitutional rights); Andrew Z. Soshnick,
The Rape Shield Paradox: Complainant Protection amidst Oscillating Trends of State Judicial Interpretation, 78 J.CRIM.L.
& CRIMINOLOGY 644, 644-45 & nn. 1-3 (1987) (noting that 40 states enacted rape-shield laws through statute, nine states
used evidentiary rules to accomplish the protection, and Arizona provided protection through judicial opinion). The federal
rape-shield rule has been codified in FED.R.EVID. 412. For a brief history and discussion of Rule 412, see 23 CHARLES A.

4 For an overview of recent developments, see Anne L. Buckborough, Family Law: Recent Developments in the Law of Marital
Rape, 1989 ANN.SURV.AM.L. 343, 343 (1990) (stating that “most states recognize some legal limitation on a husband’s
‘right’ to have sex with his wife, but no consensus exists as to the extent of that limitation”).

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5 Such legal permission is customarily traced to William Blackstone. See 1 WILLIAM BLACKSTONE, COMMENTARIES
ON THE LAW OF ENGLAND 444 (Univ. of Chicago Press, 1979) (1765-1769).

6 The view that complaints by children about sexual abuse were most likely fantasy was forwarded most famously, and perhaps
126-35 (James Strachey ed. & trans., 1977). This view has since been widely discredited for children’s complaints in general.
It has also been discredited even about Freud’s own cases. See JEFFREY M. MASSON, THE ASSAULT ON TRUTH:
FREUD’S SUPPRESSION OF THE SEDUCTION THEORY 50 (1984); Suzanne Gearhart, The Scene of Psychoanalysis,
in IN DORA’S CASE: FREUD-HYSTERIA-FEMINISM 106-07 (Charles Bernheimer & Claire Kahane eds., 2d ed. 1990).

7 See Meritor Sav. Bank v. Vinson, 477 U.S. 57, 66 (1986) (concluding that sexual harassment is actionable as a form of sexual

(1988) (providing an account of the way in which the interpretation of law and the interpretation of fact go on simultaneously
in the processes of lawyering and judging).

9 See generally Kim Lane Scheppele, Facing Facts in Legal Interpretation, 30 REPRESENTATIONS 42 (1990) (arguing that
legal interpretation necessarily constructs accounts of law and fact simultaneously and discussing whether the flexibility judges
have in interpreting facts undermines the legitimacy of legal institutions) [hereinafter Scheppele, Facing Facts]; Kim Lane
Scheppele, Foreword: Telling Stories, 87 MICH.L.REV. 2073 (1989) (discussing evidentiary habits in the construction of
stories from evidence) [hereinafter Scheppele, Telling Stories]. For other accounts of the practices of fact-interpretation in law,
THE LAW (David R. Papke ed., 1992) (collection on the uses of narrative in legal reasoning). See generally Symposium, Legal
Storytelling, 87 MICH.L.REV. 2073 (1989) (special issue on the uses of narrative in the law).

10 See Morrison Torrey, When Will We Be Believed? Rape Myths and the Idea of a Fair Trial in Rape Prosecutions, 24
U.C.DAVIS L.REV. 1013, 1041-43 (1991); see also People v. Brown, 524 N.E.2d 742, 747 (Ill.App.Ct.1988) (finding that
“evidence of the victim’s prompt complaint should be admissible to overcome the adverse inference which would otherwise
arise from her silence”); Dawn M. DuBois, A Matter of Time: Evidence of a Victim’s Prompt Complaint in New York, 53
BROOK.L.REV. 1088 (1988) (stating that the prompt-complaint doctrine is based on “antiquated perceptions of how women
respond to rape” and suggesting an alternative to the doctrine). But see MODEL PENAL CODE § 213.6(4) (Official Draft
and Revised Comments 1980). The Model Penal Code proposed placing strict time limits on those making rape complaints:
“No prosecution may be instituted or maintained under this Article unless the alleged offense was brought to the notice of
Public authorities within three (3) months of its occurrence.” Id.

11 Many rape victims suffer from short-term memory loss, which may result from an attempt to escape from a fear-inducing
situation. Lois G. Veronen et al., Treating Fear and Anxiety in Rape Victims: Implications for the Criminal Justice System,
in PERSPECTIVES ON VICTIMOLOGY 150 (William H. Parsonage ed., 1979).

12 “During my last semester of law school, a friend tried to rape me in my apartment in Cambridge, Massachusetts. I lived alone.
While it was happening, I felt disembodied and I lost my voice.” Terry N. Steinberg, Rape on College Campuses: Reform
Through Title IX, 18 J.C. & U.L. 39, 39 (1991) (describing the author’s personal experience as the victim of a violent rape).

13 Most women do not report sexualized threats and sexualized violence against them at all. In one survey conducted in San
Francisco, only 9.5% of the women reported their rapes. DIANA E.H. RUSSELL, SEXUAL EXPLOITATION: RAPE,
CHILD SEXUAL ABUSE, AND WORKPLACE HARASSMENT 31 (1984). Estimates on the number of rapes which are

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actually reported range from 5 to 30%. MENACHEM AMIR, PATTERNS IN FORCIBLE RAPE 27-28 (1971); see also
Scheppele, supra note 1, at 1096 (stating that approximately half of all victims fail to report rapes or rape attempts and that
acquaintance rapes are largely unreported). Of those who do report, many delay before calling the police. One New York
study found that most victims wait two to seven days before reporting a rape, while a Massachusetts study reported that half of
the rape victims waited before reporting. Torrey, supra note 10, at 1016 n. 10 (citing studies that illustrate that only about half
of rape victims report what has happened to them). Apparently, women tend to wait even longer if they know their assailant.
FINDINGS 188-90 (1979); see also Kimberly A. Mango, Students versus Professors: Combatting Sexual Harassment Under
Title IX of the Education Amendments of 1972, 23 CONN.L.REV. 355, 359 n. 13 (1991) (citing a study of sexual-harassment
victims at Cornell University that found that less than one percent of the victims actually filed complaints); Kathleen Waits,
The Criminal Justice System’s Response to Battering: Understanding the Problem, Forging the Solutions, 60 WASH.L.REV.
267, 275 (1985) (stating that experts agree that statistics underestimate the extent of woman-battering because of the victim’s
reluctance to report the crimes).

14 In one government study, 52% of the female victims of sexual harassment ignored the harassing conduct and did nothing
AN UPDATE 24 (1988).

15 Battered women often refuse to tell anyone that they are being beaten. See LENORE WALKER, THE BATTERED
WOMAN 74 (1979).

16 Experience of sexual harassment caused Anita Hill to keep notes on all the work she did to show what a model employee she
was. See infra text accompanying notes 30-31.

17 See Kim Lane Scheppele & Pauline Bart, Through Women’s Eyes: Defining Danger in the Wake of Sexual Assault, 39
J.SOC.ISSUES 63, 79 (1983).


19 See Torrey, supra note 10, at 1044.

20 At this point, this is hardly a controversial proposition. A survey of state and federal judges, taken around the time of the
initial testimony, revealed that two-thirds of them believed Anita Hill. See Hearings Turn off Judges: NLJ Survey Finds They
Don’t Want Top Spot, NAT’L L.J., Oct. 28, 1991, at 1. At the time of the hearings, a poll showed that more Americans
believed Clarence Thomas than believed Anita Hill. The figures stood at 40% for Thomas and only 24% for Hill. See Jill
Smolowe, Anita Hill’s Legacy: A Year After the Clarence Thomas Hearings, Women Wonder if the Consciousness-Raising
Made Enough of a Difference, TIME, Oct. 19, 1992, at 56. A year later, however, several surveys revealed that more people
believed Anita Hill than believed Clarence Thomas. A Wall Street Journal/NBC News survey reported that 44% of registered
voters believed Hill while only 34% believed Thomas. Id. A U.S. News and World Report poll reported a 38% to 38% deadlock
in credibility ratings one year after the hearings, while polls at the time registered 60% to 20% in favor of Thomas. Gloria
Borger et al., The Untold Story, U.S. NEWS & WORLD REP., Oct. 12, 1992, at 28. It is significant to note that the percentage
of people who thought Hill had been treated unfairly rose from 8% at the time of the hearings to 39% a year later. Id.

MEMORY (1990); Gerald P. Lopez, Lay Lawyering, 32 UCLA L.REV. 1 (1984).

22 See Nomination of Clarence Thomas to Associate Justice of the Supreme Court of the United States: Hearings of the Senate
Judiciary Committee, 102d Cong., 2d Sess., Federal News Service, Oct. 11, 1991, available in LEXIS, Nexis Library, Fednew
File [hereinafter Hearings].

23 See id.

24 See id.

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25 See id.

26 See id.

27 See id.

28 Id.

29 Id.

30 Id.

31 Id.

32 Id.

33 Id.

34 Id.

35 See Nomination of Clarence Thomas to Associate Justice of the Supreme Court of the United States: Hearings of the Senate
Judiciary Committee, 102d Cong., 2d Sess., Federal News Service, Oct. 13, 1991, available in LEXIS, Nexis Library, Fednew

36 Hearings, supra note 22.

37 Id.

38 Andrew Ross, The Private Parts of Justice, in RACE-ING JUSTICE, ENGENDERING POWER: ESSAYS ON ANITA

39 Hearings, supra note 22.

40 Id.

41 Id.

42 Id.

43 Id.

44 Toni Morrison, Introduction: Friday on the Potomac, in RACE-ING JUSTICE, ENGENDERING POWER: ESSAYS ON
ed., 1992).

45 See Hearings, supra note 22.

46 Id.

47 Id.

48 See id.

49 See id.

50 What else should we call a female politico?

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52 See id.; see also Torrey, supra note 10, at 1044-45 (stating that “a significant number of women who are raped do not report
the rape for several days or may even experience a ‘silent reaction’ and not tell anyone of the assault”).

53 See supra notes 13-15 and accompanying text.

54 See supra notes 11-12, 16-19 and accompanying text.

55 Herman, supra note 18, at 74.

56 See id. at 76-80.

57 Post-traumatic stress syndrome, as Herman’s book makes clear, is not confined to women. Combat veterans often have the
same symptoms, as do Holocaust survivors, political prisoners, and disaster victims, regardless of gender. See id. at 74-75,
181-82, 188. In the realm of criminal law, however, the vast majority of people suffering from this psychological response are
women whose brutalities generally come in the name of common crimes. See id. at 175-87.

58 Id. at 175.

59 In our research on recovery from the trauma of rape, we discovered that women who were attacked when they thought they
were safe had more severe reactions than women who were attacked when they believed that they were taking risks or were
otherwise in danger, controlling for the severity of violence in the assault. See Scheppele & Bart, supra note 17, at 76-78. For
the women with the most disoriented reactions, narrative consistency was disturbed, but so was any sense of associative logic.
See id. One woman who had been attacked in a cornfield near her childhood home (where she felt safe) developed a terror of
urban elevators. Id. at 69. A woman attacked at 10 A.M. coming back from the grocery store felt terrified to drive. See id. at
77. In one of the most severe reactions, a woman who was attacked at a party given by friends was subsequently placed in a
mental institution for several years. Id. at 70-71. All of these women had trouble explaining why their fear spread the way it
did from situations like the one in which they were attacked to other situations, apparently unrelated to the outside observer,
in which the woman had previously felt safe as well. Nothing “made sense” in conscious terms.

60 HERMAN, supra note 18, at 179-80.

61 See id. at 176-81.

62 See id.

63 The woman who has been sexually harassed may experience “severe physical effects, including irritability, nausea, headaches,
loss of concentration, dizzy spells, stomach aches, fatigue, muscle spasms, hypertension and psychogenic pain.” See Tina
Kirstein-Ezzell, Eradicating Title VII Sexual Harassment by Recognizing an Employer’s Duty to Prohibit Sexual Harassment,
33 ARIZ.L.REV. 383, 386 (1991) (footnote omitted); see also Robinson v. Jacksonville Shipyards, Inc., 760 F.Supp. 1486,
1519 (M.D.Fla.1991) (explaining that women who had been sexually harassed at work reported sleep disturbances and other
signs of trauma).

64 My suspicion is that many women who experience sexual harassment as students drop out of school or otherwise significantly
change their career plans to avoid the men who harass them. Because most studies of sexual harassment in schools involve
women who have remained at the school, those who left are not included. Based on discussions with many undergraduate and
graduate students, I can say that being “hassled” by a male teacher or by male students has led quite a few female students to
lose sleep, to go into therapy, to start doing badly in their coursework, and, eventually, to leave the university. One woman
student I spoke with had been the victim of a particularly cruel joke at a fraternity party. This woman was unable to attend
classes without snickering men from that fraternity teasing her and reminding her of the event. She had difficulty eating and
sleeping, and eventually withdrew from school. The men who did this to her have graduated, but the woman has never returned
to school. Another student, sexually harassed by a male faculty member, quit school in mid-semester. Years later, she returned

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to try to complete the courses she abruptly left, wiser about the effects of sexual harassment, but with a large gap in her resume
that needs to be explained when she applies for a job.

65 Hearings, supra note 22.

66 See HERMAN, supra note 18, at 183.

67 See Hearings, supra note 22.

68 See Martha R. Mahoney, Legal Images of Battered Women: Redefining the Issue of Separation, 90 MICH.L.REV. 1, 10
(1991) (citing LENORE WALKER, THE BATTERED WOMAN 19 (1979)).

69 This figure is contested. Compare Allan G. Johnson, On the Prevalence of Rape in the United States, 6 SIGNS 136, 144-45
(1980) (using FBI statistics and very conservative assumptions to estimate that 20-30% of women between the ages of 12 and
70 will experience a rape attack in their lifetimes) and Diana E.H. Russell & Nancy Howell, The Prevalence of Rape in the
United States Revisited, 8 SIGNS 688, 694-95 (1983) (using somewhat less conservative assumptions to estimate that 46% of
women will be victims of a rape attack during their lifetimes) with Douglas Laycock, Vicious Stereotypes in Polite Society,
8 CONST.COMMENTARY 395, 403-04 (1991) (using data from a 1985 Department of Justice National Crime Survey to
estimate that 15% of women between the ages of 12 and 80 will experience a rape, attempted rape, or verbal threat of rape
in their lifetimes).

70 We might interpret Susan Estrich’s account of a “real rape” as a sexual assault that fits nicely within a culturally available
story. After Estrich, who is white, was raped by a stranger, who was black and who also stole her car, police considered her
a credible victim and treated her with sympathy. When women are raped by men of the same social category as their own
and in a “friendly” setting, however, their stories do not fit the typical rape model and, therefore, are not readily believed.
See ESTRICH, supra note 1, at 3.

71 Many people believe that most rapes would not happen if women did not provoke them. Nineteen percent of Anglo men, 25%
of Anglo women, 73% of Black men, 23% of Black women, 32% of Mexican-American men and 70% of Mexican-American
PUBLIC ATTITUDES 135 tbl. 17 (1981).

72 James Check and Neil Malamuth report that up to 40% of both men and women indicate that it is acceptable for a man to
force a woman to have sex with him if she “gets the man sexually excited, is stoned or drunk, or has had intercourse with
other men.” James V.P. Check & Neil M. Malamuth, An Empirical Assessment of Some Feminist Hypotheses About Rape,
8 INT’L J.WOMEN’S STUD. 414, 416 (1985).

73 When asked whether rapists were mentally ill, Williams and Holmes report that 91% of Anglo men, 92% of Anglo women,
83% of Black men, 98% of Black women, 87% of Mexican-American men, and 63% of Mexican-American women believed
that this was the case. See WILLIAMS & HOLMES, supra note 71, at 136 tbl. 18.

74 Technically, evidence of motive is not required for criminal prosecutions. WAYNE R. LAFAVE, MODERN CRIMINAL
LAW: CASES, COMMENTS AND QUESTIONS 105 (2d ed. 1988). But it is hard to convince a jury that the defendant
actually did the crime he is accused of unless there is a motive.

75 See Check & Malamuth, supra note 72, at 415 (noting that “[d]espite … numerous efforts to identify ways in which rapists
are abnormal, the results have generally indicated very few differences between rapists and nonrapists which would justify
any conclusion that rapists are grossly abnormal”). In a study of “normal” male college students, about 35% reported some
proclivity to rape women and 20% reported a strong proclivity. See Neil M. Malamuth, Rape Proclivity among Males, 37
J.SOC.ISSUES 138, 140 (1981).

76 The term is taken from Susan Estrich. See ESTRICH, supra note 1, at 3.

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77 In a study of rape victims, we discovered that many women engaged in self-blame as a way of recovering from brutal rape
attacks. By telling herself that she can avoid rape in the future if only she does not walk home at night alone, if only she does
not go into the park by herself, or if only she does not get into elevators with strange men, a woman can make the world seem
manageable again. This enables her to recover from the assault more quickly than other women who do not tell themselves
these self-blaming accounts. See Scheppele & Bart, supra note 17, at 79.

78 Feelings of shame have been common among survivors of Nazi concentration camps. See PRIMO LEVI, THE DROWNED
AND THE SAVED 70 (Raymond Rosenthal trans., Summit Books 1988). The shame comes from one’s memory of imagined
complicity with the oppressor and of interpreting the horrors one has suffered as a judgment of one’s self. “Coming out of the
darkness,” Levi writes, “one suffered because of the reacquired consciousness of having been diminished.” Id. at 75.

79 See Hearings, supra note 22.

80 See id.

81 939 F.2d 484 (7th Cir.1991).

82 Id. at 485.

83 Id.

84 Id.

85 See 42 U.S.C. § 1983 (1988).

86 Reed v. Shepard, No. EV85-21-C (S.D.Ind. May 25, 1990) (unpublished opinion of Chief Judge Gene E. Brooks).

87 Reed, 939 F.2d at 484.

88 See id. at 489. The district court’s conclusion on this issue is mentioned in the opinion of the court of appeals. See id. at 488.

89 42 U.S.C. § 2000e (1988); see Reed, 939 F.2d at 488.

90 Reed, 939 F.2d at 486 (footnote omitted) (quoting Reed, No. EV85-21-C).

91 Id.

92 Id.

93 See id. I should explain something important about this case to put the discussion of this opinion in context. Reed had been
charged with trafficking marijuana to some of the inmates in the prison and with encouraging two female inmates to assault
another inmate with whom they shared a cell. Apparently, substantial evidence existed to sustain these charges, including a
confession, though the evidence does not appear in the appeals court report and the confession was later retracted. See id.
at 487. The judges apparently believed that Reed was not a terribly sympathetic character in general, and this undoubtedly
affected their treatment of her sexual-harassment claims. But the principles of law on which the three-judge panel unanimously
relied and the evidence they used to illustrate such principles have implications for the consideration of sexual-harassment
claims more generally. I focus on the court’s treatment of the sexual-harassment claim in isolation because the reasoning
presumably would also apply to more sympathetic victims.

94 Id. at 486-87.

95 See id. at 487.

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96 See id. The fact that other women had experienced this conduct and had to tell the men to stop was not used by the court
as evidence of a hostile working environment. The men, after all, did stop when asked, erasing their prior conduct as far as
the court was concerned. See id.

97 Id. at 492 ( [sic]s in original).

98 477 U.S. 57 (1986).

99 Reed, 939 F.2d at 491 (quoting Meritor, 477 U.S. at 67).

100 See id. at 491-92.

101 See id. at 492-93

102 Id. at 492 (quoting Reed v. Shepard, No. EV85-21-C (S.D.Ind. May 25, 1990)).

103 Id. at 486.

104 See id. at 491.

105 See Meritor, 477 U.S. at 68. In Meritor, the Supreme Court found that the appearance of voluntary participation by the victim
did not defeat a successful harassment claim. The behavior that Mechelle Vinson complained of in Meritor was so obviously
harassment in the view of the unanimous Supreme Court that her failure to object directly to her boss, who had forced her
into a sexual relationship with him, did not bar her subsequent claim. See id. Why should the Seventh Circuit not consider
what happened to JoAnn Reed as harassment also under this standard?

106 As Martha R. Mahoney noted, women generally need their jobs and face a hard time finding others in an economy that does
not in general pay women very well. See Martha R. Mahoney, Exit: Power and the Idea of Leaving in Love, Work, and the
Confirmation Hearings, 65 S.CAL.L.REV. 1283, 1291-99 (1992).

107 Women fear that they will be retaliated against if they complain, regardless of whether they win a lawsuit. They fear that
their careers and their reputations will suffer if they do not put up with the abuse. Tamar Lewin, A Case Study of Sexual
Harassment, N.Y. TIMES, Oct. 11, 1991, at A18.

108 In one survey, only nine percent of the women quit their jobs immediately after the harassment began, although more women
quit once the harassment escalated. See LIN FARLEY, SEXUAL SHAKEDOWN: THE SEXUAL HARASSMENT OF
WOMEN ON THE JOB 21-22 (1978). Another report found that fewer than five percent of sexually harassed men and
women ever report the harassment or take other action. See Sandra S. Tangri et al., Sexual Harassment at Work: Three
Explanatory Models, 38 J.SOC.ISSUES 33, 47 (1982) (noting that most, but not all, sexual-harassment victims failed to report
the behavior).

109 See Reed, 939 F.2d at 490. The court also found that she had not been subjected to sexual discrimination in employment and
that all the ways in which she was treated differently from her coworkers were due to her rank as a civilian jailer rather than
her sex. See id. at 490-91. No evidence was given on the relative numbers of men and women who held the ranks of the less
prestigious civilian jailer and the more lucrative and privileged position of deputy sheriff in this case, though there were clearly
some men and women in each rank. See id. Everyone knew, however, how Reed was and women who held the ranks of the
less prestigious civilian jailer and the more lucrative and privileged position of deputy sheriff in this case, though there were
clearly some men and women in each rank. See id. Everyone knew, however, how Reed was treated, and women who testified
indicated that they had to explicitly opt out of such treatment themselves. See id. at 487. What sort of workplace is this in
which a person is held to consent to such violent, dangerous, and abusive treatment?

110 281 Cal.Rptr. 709 (Ct.App.1991).

111 Id. at 711-12.

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112 Id. at 718.

113 Id. at 712.

114 Id.

115 Id.

116 For an explanation of this issue, see Jocelyn B. Lamm, Easing Access to the Courts for Incest Victims: Toward an Equitable
Application of the Delayed Discovery Rule, 100 YALE L.J. 2189 (1991).

117 California has had a particularly dramatic history with these cases. In DeRose v. Carswell, 242 Cal.Rptr. 368 (Ct.App.1987),
the court rejected the claim of a woman who alleged that her grandfather had molested her repeatedly when she was between
the ages of 4 and 11, finding that the statute of limitations had tolled on the case. See id. at 377. Because she knew everything
she needed to know to file the claim within the statute of limitations, the court reasoned, she should not be allowed to proceed
with the case after that time. In 1990, the California legislature enacted a statute designed to supercede DeRose by extending
the statute of limitations on childhood molestations to eight years from the date the plaintiff attains the age of majority or
three years after all of the relevant facts could have been discovered, whichever is later. See CAL.CIV.PROC.CODE § 340.1(a)
(West 1993).

118 See Daly, 281 Cal.Rptr. at 716, 720.

119 See id. at 718.

120 In fact, in Marsha V. v. Gardner, 281 Cal.Rptr. 473 (Ct.App.1991), the court dismissed an action brought by a woman against
her grandfather 15 years after the last molestation occurred. The molestations had continued for nine years, during which time
her grandfather had allegedly sexually abused, threatened, and used physical violence against her. Nonetheless, the court held
that 15 years after the last event was too late to bring the suit because the plaintiff had always known that her grandfather
had sexually molested her and that his acts were committed against her will and without her consent. See id. at 477. The fact
that the woman claimed she suffered from “dissociation and psychological accommodation” only created uncertainty as to
the amount of damages and did not keep her from knowing enough to file the case within the statutorily defined limits. Id.
She said that she was not fully aware of the events, however, until she received therapy. See id. at 474. The dissent emphasized
that Marsha V. could have possibly won in court under the new statute, because she filed within three years of discovering
the injury. See id. at 478-85 (Johnson, J., dissenting).

121 504 N.E.2d 575 (Ind.1987).

122 See id. at 577-79, 582.

123 See id. at 578.

124 Id.

125 Id.

126 Id. at 579.

127 See id. at 578-79.

128 Id. at 577, 582.

129 See id. at 577-78, 581.

130 ESTRICH, supra note 1, at 3.

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131 See Simmons, 504 N.E.2d at 577, 581.

132 Id. at 578.

133 Id.

134 See id.

135 577 A.2d 1282 (N.J.Super.Ct.App.Div.1990).

136 See id. at 1286-88.

137 Id. at 1284.

138 See id.

139 Id.

140 See id.

141 Id.

142 See id. at 1285.

143 Id.

144 Id. at 1285.

145 Id. at 1284.

146 See id. at 1285.

147 See id. at 1284-85.

148 See id. at 1284.

149 See id. at 1285.

150 Id. at 1287.

151 See id. at 1284-85.

152 See id. at 1285-88.

153 See id. at 1288.

154 See id. at 1285.

155 See Scheppele, Facing Facts, supra note 9, at 42.

156 See BENNETT & FELDMAN, supra note 9; Paul Ekman & Maureen O’Sullivan, Who Can Catch a Liar?, 46
AM.PSYCHOL. 913 (1991).

157 See BENNETT & FELDMAN, supra note 9, at ix.

158 CLIFFORD GEERTZ, Thick Description: Toward an Interpretive Theory of Culture, in THE INTERPRETATION OF
CULTURES 3, 29 (1973).

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AND HISTORY 4-5 (1986); Theodore R. Sarbin, The Narrative as a Root Metaphor for Psychology, in NARRATIVE
PSYCHOLOGY: THE STORIED NATURE OF HUMAN CONDUCT 3, 9 (Theodore R. Sarbin ed., 1986); Jerome Bruner,
The Narrative Construction of Reality, 18 CRITICAL INQUIRY 1, 5-6 (1991).

160 For an example of essays providing a range of views on the process of writing history, with a particular focus on what cannot be
Friedlander ed., 1992) [hereinafter PROBING THE LIMITS].

161 No. BA035498 (L.A., Cal.County Ct., Apr. 30, 1992) (unpublished opinion of Judge Weisberg).

162 The exceptions to this generalization pose special problems for historians. See Carlo Ginzburg, Just One Witness, in
PROBING THE LIMITS, supra note 160, at 82.

163 See NELSON GOODMAN, WAYS OF WORLDMAKING 20, 97 (1978). In a more distinctly legal context, see Richard K.
Sherwin, Dialects and Dominance: A Study of Rhetorical Fields in the Law of Confessions, 136 U.PA.L.REV. 729 (1988).

164 See Donna J. Haraway, Situated Knowledges: The Science Question in Feminism and the Privilege of Partial Perspective, in
SIMIANS, CYBORGS, AND WOMEN: THE REINVENTION OF NATURE 188-89 (1991). For an account of the truth/
ideology distinction in the history of Marxist thought, see MICHELE BARRETT, THE POLITICS OF TRUTH: FROM

165 See FED.R.EVID. 801; see also Laurence H. Tribe, Triangulating Hearsay, 87 HARV.L.REV. 957, 958 (1974) (explaining that
hearsay is excluded because of inaccuracies attributed to ambiguity, insincerity, faulty perception, and erroneous memory).

166 See FED.R.EVID. 403 (excluding evidence in circumstances in which its probative value is substantially outweighed by the
danger of unfair prejudice).

167 See FED.R.EVID. 402 (excluding evidence that is not relevant).

168 See FED.R.EVID. 801 (defining hearsay as, inter alia, “a statement, other than one made by the declarant while testifying [in
court], offered in evidence to prove the truth of the matter asserted”; hearsay is not admissible except as provided by the Rules
or the Supreme Court); see also Tribe, supra note 165, at 958 (explaining that hearsay is excluded because of inaccuracies
attributed to ambiguity, insincerity, faulty perception, and erroneous memory).

169 See generally 1 JOHN H. WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW § 6.5 (Peter Tillers rev. vol. 1983)
(arguing that the drafters of the Federal Rules of Evidence did not consider whether the procedural techniques used to regulate
the presentation of evidence would be successful in achieving accuracy).


171 See SCHEPPELE, supra note 8, at 86-102 (detailing the interrelationship between interpreting facts and laws).

172 See id. at 103-04; see also Scheppele, Telling Stories, supra note 9, at 2080-83 (stating that the way people interpret what they
see depends to a very large extent on prior experiences, on the ways in which they organize their observations, and on patterns
of their daily life; this poses a particular problem in the law because judges and jurors are not first-hand witnesses and can
only weigh other people’s perceptions).

173 See Scheppele, Telling Stories, supra note 9, at 2079 n. 21.


175 See ACTS, supra note 159, at 55-59.

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176 LUDWIG WITTGENSTEIN, PHILOSOPHICAL INVESTIGATIONS 194-95 (G.E.M. Anscombe trans., 3d ed. 1984).

177 In an earlier version of this paper, I called revised stories “considered stories” to emphasize their connection with considered

178 GOODMAN, supra note 163, at 92.

179 Unpublished study (on file with author).


181 See Wendy Pollack, Sexual Harassment: Women’s Experience v. Legal Definitions, 13 HARV.WOMEN’S L.J. 35, 51 (1990)
(stating that women often quit jobs, request transfers, and even request demotions as a result of sexual harassment in their
work environment).

182 See Mango, supra note 13, at 359-60.

183 See generally Elizabeth M. Schneider, Describing and Changing: Women’s Self-Defense Work and the Problem of Expert
Testimony on Battering, 9 WOMEN’S RTS.L.REP. 195 (1986) (arguing, in part, that the “battered woman syndrome”
defense, as told through expert testimony, often perpetuates gender stereotypes of female incapacity).

37 NYLSLR 123

End of Document © 2018 Thomson Reuters. No claim to original U.S. Government

He Said She Said The Defense Attack of Credibility in Domestic Violence Felony Trials.pdf

from the SAGE Social Science Collections. All Rights Reserved.

Devon Carbado.pdf

Statement of Ownership An Autoethnography of Living with HIV.pdf

Statement of Ownership:
An Autoethnography of Living With HIV

Gay men are disproportionately impacted by HIV/AIDS in the United States. There
is a dearth of autoethnographies in communication literature about living with
HIV/AIDS. In this project, the researcher presents an autoethnography about living
with HIV/AIDS. The narrative has with three points: HIV diagnosis, disease pro-
gression to AIDS, and AIDS mortality. By analyzing these areas, this project pres-
ents stages of identity development and summarizes how these have changed over
time. This project looks at how societal symbols around HIV/AIDS evolve due to
changes in technology, science and policy. This study works against the distance
presented in most social science studies of living with HIV/AIDS; instead it presents
an intimate view of current HIV/AIDS discourse and public health.

Keywords: HIV/AIDS, autoethnography, gay men, health narrative, communication

Human Immunodeficiency Virus (HIV)—the virus that leads to Acquired Immune Defi-
ciency Syndrome (AIDS)—has disproportionately impacted gay men in the United States.
According to the federal Centers for Disease Control & Prevention (CDC), gay and bisex-
ual men—or men who have sex with men (MSM)—constituted 58% of all new infections
in the United States in 2010 while being only an estimated 2% of the country’s population
(CDC, 2010). In the history of the HIV epidemic, gay men have been closely affiliated with
the public view of the disease—including being stigmatized along with people living with
HIV/AIDS (Gere, 2004; Herek & Glunt, 1988).

AIDS social stigma can be viewed as a discrediting of identity based on presumed HIV
infection (Herek & Glunt, 1988). AIDS stigma has been identified as a barrier to HIV test-
ing, HIV services and procuring social support (CDC, 2006). In addition to those living
with HIV/AIDS, AIDS stigma has affected those populations considered connected to the
disease: gay men, drug users, commercial sex workers, and caretakers of people living with



© 2014 by the Men’s Studies Press, LLC. All rights reserved.
jms.2201.12/$15.00 • DOI: 10.3149/jms.2201.12 • ISSN/1060-8265 • e-ISSN/1933-0251

* Hofstra University.

Correspondence regarding this article should be addressed to the author, Department of Rhetoric, 400 New
Academic Building 160, Hofstra University, Hempstead, NY 11549. Email: [email protected]

HIV/AIDS (Cohen, 1999; Herek & Glunt, 1988). While AIDS stigma is well documented
in the research, there remains a dearth of knowledge on AIDS stigma interventions
(Trapence et al., 2012).

Social science on HIV and gay men has focused on intervention, risk knowledge, be-
havior, community resilience, and vulnerability (Dieffenback & Fauci, 2011; Emmers-Som-
mer & Allen, 2001; Trapence et al., 2012). These studies have explored dimensions of AIDS
stigma, racism and homophobia (Ayala et al., 2012; Cohen, 1999; Diaz et al., 2001; Dowsett,
1996; Spieldenner & Castro, 2010). In addition, they have advanced knowledge about dis-
ease management, patient empowerment, community mobilization, and public health prac-
tice (Brashers et al., 2000; CDC, 2006; Epstein, 1995; Gere, 2004; Vega, 2009). These
studies have been productive in promoting scholarship and academic interest in gay men and
gay health. The current shift in the HIV epidemic is to focus on biomedical solutions and
policies (Dieffenback & Fauci, 2011). I posit that utilizing autoethnography and HIV/AIDS
can help to situate the epidemic within its biomedical, personal and social contexts.


Researchers have explored HIV/AIDS within its personal, social, historical and medical
dimensions. The medical and biological reality of HIV as a disease exists alongside a mul-
titude of social, cultural and symbolic meanings. These transform our understanding of the
disease, its pathology, its infectiousness, the transmission routes and associated risks, and
even the people who catch the disease. Due to the political agendas and concurrent social
ills associated with AIDS, cultural critic Paula Treichler (1999) asserts, “our social con-
struction of AIDS (in terms of global devastation, the threat to civil rights, the emblem of
sex and death, the ‘gay plague,’ the postmodern condition, whatever) are based not on ob-
jective, scientifically determined ‘reality’ but on what we are told about this reality: that is,
on prior social constructions routinely produced within the discourses of medical science”
(ital. original author, p. 15).

Over time, the meaning of the disease has changed. Treichler (1999) points out “this tran-
sition from a concept of AIDS as a classic epidemic of acute infectious disease to that of
AIDS as a chronic, potentially manageable disease represents one of the pervasive, influ-
ential, yet still contested shifts in meaning in the course of the 1980s and 1990s, one debated
through personal observation and testimony, epidemiology, laboratory studies, clinical tri-
als, and actuarial statistics” (p. 325).

The cultural critic and AIDS activist Douglas Crimp pushes for a dynamic relationship
to the disease. Meaning changes over time, as do politics, personal and social conditions and
medicine. Crimp (2004) acknowledges, “that world is the world of well-informed but nev-
ertheless recently infected gay men who find it hard to explain, even to ourselves, how we
allowed the worst to happen to us” (p. 11). The biological status of being HIV-negative is
not assured with an infectious disease. The institutions built in the HIV/AIDS epidemic do
not necessarily have space for this conversion: one is either HIV-negative or HIV-positive.

This world—where those who know about the disease but still become infected—fills
more and more of the gay community in the United States. Treichler (1999) comments,
“whatever else it may be, AIDS is a story, or multiple stories, and read to a surprising ex-
tent from a text that does not exist: the body of the male homosexual” (p. 19). There remains



an urgent to find new ways to explore the disease beyond medical research and treatment,
to continue the process of uncovering the multiple stories that comprise HIV.


Autoethnography combines the researcher’s self within a particular cultural context (Ellis
& Bochner, 2000). In recent years, communication scholars have used autoethnography to
explore intersectional identities including Asian gay masculinity (Eguchi, 2011), Black
women’s identity performance within academia (Griffin, 2012), and coming out within ac-
ademia (Howard, 2012). Autoethnography can be problematic, as it relies on personal per-
ception and memory (Tullis Owens et al., 2009). The method is useful in exploring a
particular phenomenon from an intimate perspective (Holman-Jones, 2008). Richards
(2008) notes that “the lived experience of illness and disability is their reality and those
who must live with this reality are those who live it, not those who study it from a distance”
(p. 1720). In this way, the social sciences have presented the researcher or clinician view of
HIV/AIDS—the disease from the external and distant point of view, rather than an internal
and personal one (Richards, 2008). Autoethnography provides the opportunity to examine
the experience of HIV from another vantage point—one that can illuminate an insider’s

Autoethnography can be implemented in multiple ways. It differs from traditional social
science research where there is often a set path of collecting and writing up data (Tullis
Owens et al., 2009). The autoethnographer sets up the project in a way that best suits the ex-
ploration of the phenomenon. Some autoethnography is explicitly political and emancipa-
tory (Holman-Jones, 2008). Researchers have utilized a variety of formats in setting up
autoethnography, including narrative ethnography (Tedlock, 1991), co-constructed narra-
tives (Vende Berg & Trujillo, 2008), dyadic interviews (Ellis, 2004), and layered accounts
(Ronai, 1992). Eguchi (2011) utilizes a layered account in his examination of femme gen-
der identity in an Asian gay male body.

Like all stories, health narratives are a way of making sense of things—in this case, health
and illness (Babrow, Kline & Rawlins, 2005). These narratives often present with culturally
embedded symbols that reveal personal and social beliefs about sickness. They indicate
how health and illness are both socially constructed (Sharf & Vanderford, 2003). Often
health narratives are used to make meaning out of sickness—in terms of the individual’s at-
tempts within his or her own life, in terms of the context in which the illness occurs, and the
temporal component of dealing with disease (Babrow, Kline & Rawlins, 2005). As with
any use of symbols, health narratives can be problematic, as individuals can use symbols
in error or have difficulty in telling their story (Harter et al, 2005). These tensions and con-
cerns are central to presenting the narratives. For the researcher, the conflict is a key to il-
luminating the challenges inherent in disease.

Within the context of HIV, I see my own narrative as having three major points: the di-
agnosis, progression to AIDS, and AIDS mortality. This project is what Richards (2008)
describes as an emancipatory discourse, an autoethnography of living with the disease as a
way of breaking silences. As such, this is “more deeply imbued with context” (Richards,
2008, p. 1722) and involves my social network of colleagues, friends and family; my ex-
perience with the gay community; as well as interactions with the institutions that provide
public health services (government and non-profit). Through this layered account, I will



present notes from a journal I kept at these various stages, and then analyze the text by ask-
ing key questions: 1) what does this say about HIV within the personal context of friends,
family and work; 2) what does this say about the community context such as the gay com-
munity or graduate school; and 3) how does this connect to other relevant HIV literature?
These three questions will take the autoethnography of the health narrative: individual con-
text, the social context in which the illness occurs, and the various ways that time affects
coping with HIV.


Today I am picking up the results of an HIV test. It’s been a hard week, where every con-
versation is the wrong one and takes too much time and energy to clear up. I’m glad it’s
Wednesday. The weekend is full of the promise of relax and love with a wonderful man, if
it works out.

I am 26 years old and have had seven, maybe eight HIV tests in my life. Before, I assumed
I had HIV so it was a shock when the test came back negative. It’s been three years since
the last; my life has changed so much I would be stunned to have the disease. Even my mo-
tivation for the test was new—not out of a bizarre sense of duty because somewhere a voice
insists gay men should, but because with this man, for this relationship, I want all the in-
formation possible so I can plan.

Another event frames the drawing of blood—the death of a colleague. Actually it was the
way he died that got to me. I’ve been working for HIV groups for six years. This col-
league—Black, gay, in his fifties—worked at the health department for ten years. He owned
his home, had a huge circle of friends and was famous for his charm. He had a fabulous
smile. He quietly entered into the hospital sometime in the early fall. He contacted a cou-
ple people. After two months he died from AIDS-related complications. Only a few knew
he had AIDS; even though he worked in public health, he remained silent about his disease.
His goodbye note, read at his funeral, was an apology for inconveniencing people. His fam-
ily loudly proclaimed him another victim of cancer. AIDS was not said anywhere at his fu-
neral, just in hushed conversations as we left the service. It is 1998 and still this man died
in this painful, lonely way. There was rage in people’s tears, shaking their voices. His shame
covered everyone like feces.

Earlier that year, I broke off with a man in Atlanta. We had been involved long distance
for eight months. It did not end well. Some time after the break he calls, hinting about hos-
pitalizations and the cold that wouldn’t go away. Finally he reveals he has AIDS and pneu-
mocystis carinnii pneumonia; he’s just gotten out of a serious hospitalization. He was
diagnosed in 1992 and told no one but his parents. Even though I could have found him a
case manager and doctor, could have brought him to resources that prevent deadly pneu-
mocystis, he didn’t say a word.

HIV is not a simple thing to discuss. Neither is sex, pain, intimacy, power, getting high
or forgiveness. At least not in meaningful ways. There are jokes, euphemisms, after-school
special sentimentality, moral positions and silence. This is part of the problem.

When Wilson died of AIDS a few years back, I was more than a little crazy. Somehow, I
tested negative for HIV. I had always been one for pushing it, for meeting as many men as
possible. There were whole years where I judged a night out by whether or not I went home
with a man. It seemed, for a long time, that every man I met had HIV, that every friend I had



already caught it. As Wilson was dying, my ‘cool’ aunt pulled me aside to lecture me about
risk. Apparently, my parents expressed concern and she chose to intervene. Without asking
about my life, she spoke about responsibility, comparing her personal sex life with mine. I
wasn’t listening, thinking as I was of other people and places I could be. Desperate for a re-
sponse, she concluded by telling me not enough of my friends had died of AIDS because
then I would not put myself at risk.

I never spoke to her again. Not beyond polite hellos and goodbyes. Did she understand
when I pointed that she is a White heterosexual married woman, and that we have very lit-
tle in common when we go to bed? I didn’t even bother to tell her that at the time of our
“conversation” my boyfriend was dying and I had stopped counting the dead the year be-
fore. Condoms are not some ultimate solution in HIV prevention. Sex is hard. AIDS is not
easy—neither is grief or frustration, poverty or hunger, loneliness or silence, pleasure or de-
sire. There are no simple answers.

A close friend asks to meet over the summer. We’ve been friends for years, fought with
and for the other, seen our lines of men, begun to recognize the patterns, reflected rage and
passion between us. He also has worked in the AIDS field almost ten years. “It’s me, I’m
the positive one,” he confesses. He hasn’t told many; he found out three years ago. Why is
this so hard for him? Where are the words for him to work through a relationship to his dis-
ease unmarked by shame and secrecy? When did even the gay community stop accepting
HIV-positive people?

In the last six months, a colleague in HIV prevention said to me, “If someone got HIV
now, they’d have to be stupid.” In the last six months, this same person, with a background
in HIV counseling and testing, explained to me, “Giving someone an HIV-positive test re-
sult is a death sentence.” I believe all people with AIDS are innocent. I know that pleasure
and desire are two tools we have to be whole, to heal, to understand the world and to be free.
I believe the smallest human unit is two, not one. I take back nothing.

My family treats HIV like a storm on the horizon and they are waiting landfall. They’ve
been like that since I came out as a gay man. My sister volunteered with an HIV support or-
ganization to get used to the disease. Another relative comments over dinner, “I don’t see
how anyone could date someone with HIV; it’s risking your life.” I believe—in his head—
that he’s trying to express concern, but it emerges from his mouth like a slap in the face. I
stay quiet, suddenly finding the most interesting pattern in the food on my plate.

Truth is a troubling event. There is power in the truth. Often, being honest means admit-
ting to conflicting sensations, feelings, perceptions and motivations in a single moment.
How something can feel pleasurable and shameful; how much rage can lay behind lust;
how crying releases pain, joy and loss; how relieved and horrified we can be at someone
else’s tragedy. There is a cost in denying the truth: in withholding history and in refusing
language and words. It’s strange to think- if we don’t tell people what we really think and
believe, what really happened between the two of us: we may never get the chance again.

In the waiting room, my number is called.


Anticipating the test results becomes a moment of reflection. Every sexual act and every
binge comes to the fore as if there is a judgment in the balance (rather than a diagnosis). HIV



testing and its associated counseling have been an important part of the disease prevention
efforts (CDC, 2006). It is common to think about the kinds of support available amongst
family and friends, and at work (Fesko, 2001; Zea et al, 2004). Conversations and actions
are called up in memory and analyzed. Each word is cast in a suspicious light; every act has
a potentially sinister motivation. The prospect of testing positive makes for a particular vul-
nerability. HIV is another level of “coming out” and, like with sexuality, it can alter an in-
dividual’s support network, professional life, dating, and goals (Collins, 1998; Zea et al.,

Access to healthcare is a critical concern at the point of diagnosis (Dieffenback & Fauci,
2011). Culturally competent healthcare can have significant impact on an HIV-positive per-
son’s health outcomes by encouraging beneficial choices, monitoring disease progression,
identifying any potential opportunistic infections, and building a rapport with the patient so
they remain in care. The sooner that the person finds this quality of clinical care, the more
likely they are to maintain it through the course of the disease (Gardner et al., 2011). In-
surance and public assistance programs can ameliorate anxiety around cost, but raises ap-
prehension about identity in other ways. Individuals who are afraid of disclosing their HIV
status may be cautious about utilizing work-based insurance plans. If the individual needs
public assistance programs, the process of signing up for and using these services may con-
stitute a new identity—as an HIV-positive person and a beneficiary of public assistance
(Kinsler et al., 2007).

I have been in and out of public assistance programs, depending on my employment and
insurance. While a graduate student, I found out the hard way that routine diagnostic tests
were not covered by the university health insurance for pre-existing conditions. No one ex-
plained that to me; none of the faculty had been aware of this clause when they recruited
me. While between jobs, I have had to use public benefits. Throughout, I have come to ap-
preciate the stern compassion of those who provide medical and health care, like the client
services director who explained the technical definition of “homeless” when I was living on
a friend’s couch but too proud to call the situation by name or the many nurses, doctors,
physician assistants and receptionists who shared some warmth and a smile when I felt like
a diseased pariah. I also became familiar with the contempt of some people in the healing
professions: the receptionists who gossiped too loudly about the “AIDS patient” in the wait-
ing room, the case manager who refused to refer me to services because I “didn’t look sick,”
the HIV prevention staff across the city who felt the need to call and tell me to be ashamed
and leave the field because I was a “failure of prevention.”

The diagnosis is the moment where AIDS stigma becomes a practical concern. In this
case, AIDS stigma is a moment where the person living with HIV/AIDS is discredited due
to social values about the condition (Goffman, 1963; Herek & Glunt, 1988). After the di-
agnosis, each conversation and interactions reveals how people value being HIV-positive.
In this case, the professional and familial network proved stigmatizing for this person with
HIV. The lack of support and the expressed value given that health condition is illustrative:
that being HIV-positive presents a threat to the personal and communal identities. In the
former, having HIV means that you can transmit it. In the latter, having HIV shows that not
all gay men are successful and accepted in mainstream society.




Ten years since the diagnosis: I’ve traveled and changed jobs. The love of my life—at the
time—left me. Wandering the world—living in Los Angeles, Fort Lauderdale, Bangkok
and Saigon—I’ve left most of my life behind with a series of e-mails like breadcrumbs
dropped along a twisted path. New journeys open up: across sex, the gay life, and travel-
ling. I feel lucky to be healthy after a series of torrid escapades.

Adventuring across borders allows for some anonymity. For the first time since the di-
agnosis, I’m free from HIV; I have options besides being a diagnosis. In Viet Nam, I am
mostly a stranger in a strange land; in Thailand, I play multiracial Asian party boy. No one
knows me or my past. But even in this liminal state, I can feel my history catching up to me
like a bad smell. The world isn’t big enough anymore. People start remembering me; Amer-
icans travel through Bangkok and recognize me from other parties, other jobs, other social
protests, other conferences. I can’t escape.

A group of gay Vietnamese Americans are vacationing in Saigon when I’m there. One rec-
ognizes me from some gay Vietnamese or gay Asian conference in San Francisco or San
Jose (I can’t remember exactly what or where). When I go back to his friend’s hotel room,
he calls the mobile phone all night, leaving messages warning him about my HIV status. I
find out later that he’s done this in the small gay scene in Saigon and I no longer feel wel-
come in the bars or coffee shops. Time to return home.

A few years pass, I get a job at a national organization focused on people living with
HIV/AIDS. We develop national and regional initiatives, actively participate on federal sci-
entific and community panels, and try to pull together a cohesive new voice for people liv-
ing with HIV/AIDS—twenty-five years after the first case emerged in the United States.
Typical of non-profits, no matter how much you accomplish, there’s always more that needs
to be done. In this position, I meet a lot of other people with HIV/AIDS. I meet: teenagers
who were recently told from their parents that they were born with HIV; gay men who re-
main closeted about their status; people who refuse treatment because of fear of side ef-
fects; men and women who do not want to be reduced to a label of HIV. I meet people who
were diagnosed in the past week, and others who have lived with the disease so long they
act like they own it. It’s a weird world to represent, an impossible feat to actually synthe-
size all these concerns into one coherent voice. Instead I try to build platforms big enough
for everyone to have a place.

I do not realize how “out” my HIV status is until my first date with a man who would re-
main in my life. We meet at a national conference about AIDS. He was coming up in the
HIV non-profit world, strikingly handsome and brilliant. One night he approaches me with,
“I’ve always wanted to date you. Let’s go out.” My response is a nervous “yes.” On our date,
I tell him I have HIV—scared that this will ruin an otherwise lovely time with a beautiful
man. He laughs at me, pinches my cheek and explains, “I think everyone knows that.” I
smile. Then realize what he means: this information about my personal health will always
be public information.

My body gets erratic: I’m in and out of being sick and run down. I feel weak, diminished.
My doctor tells me it’s time for medication. The irony is not lost—I joke to my friends that
working in HIV gave me AIDS. I would laugh it off, but my frustration, anger and fear rise
up like bile—at my poor health; at the loss of face; at the thought of an AIDS identity. Yes,



even amongst those living with the disease, there is a hierarchy of social and health status.
Taking medication is a clear sign of downward mobility. Over a decade of publicity on the
side effects of medication has encouraged a fear of the pills: I have no desire for uncon-
trollable diarrhea or lypodystrophy (a condition that causes fat to shift in the body, leaving
unsightly lumps on the face, back and gut). There has to be more than this disease.

“Before I die, I want a PhD” is my mantra. Graduate school brings new challenges. The
accepted part of the struggle in academia—justifying a research area, coming out as a gay
man, resisting the infantilizing force of the bureaucracy—is complicated by HIV disclo-
sure. Do I tell my faculty? Do I tell my students? My colleagues? This is not a common
thought among my cohort. I do not know how to say it until I put it within my dissertation.


Living with HIV is not as simple as taking a pill. It is also not as much a death sentence
as it once was, as long as medication is accessible and affordable (CDC, 2006; Gardner et
al., 2011). Healthcare is difficult to incorporate into a regular routine, especially if the in-
dividual is not accustomed to medical visits, clinic staff, blood draws and adherence to daily
medication regimens (Campo et al., 2007; Kinsler et al., 2007; Penniman et al., 2007). Peo-
ple living with HIV have better health outcomes when they take ownership of the medical
part of their disease (Tsarenko & Polonsky, 2011). When people living with HIV assert
themselves in clinical situations, they are more likely to be retained in care (Brashers et al,
2000). Lack of social support and feelings of stigmatization can hinder healthcare utiliza-
tion (Wohl et al., 2011).

Part of coming to terms with HIV is learning whether support will be positive or nega-
tive from established social networks (Baumgartner & David, 2009). My own pattern—
disclosing arbitrarily for the first year, learning to be more strategic, finding support systems,
avoiding and minimizing stigmatizing situations—seems to be echoed across other
racial/ethnic minority gay men (Choi et al., 2011). Fear of rejection from prospective lovers,
community institutions, co-workers and/or family remains a concern, even amongst gay
men after thirty years of the AIDS epidemic (Harding & Molloy, 2008; Wohl et al., 2011).
This can even impact willingness to disclose HIV-status (Fesko, 2001; Waddell & Messeri,
2006; Wohl et al., 2011; Zea et al., 2005). While I had told my family in 1990 that I was gay:
I would wait until graduation from my Masters program to admit I was HIV-positive, ten
years after the diagnosis.

I returned to working in HIV/AIDS, doing some small part to building an organization
and providing a leadership voice. This is not uncommon amongst gay men (Trapence et al.,
2012). Taking part in service provision and representing the community publicly is one way
to take control of the disease and become comfortable with the diagnosis (Baumgartner &
David, 2009). By choosing this strategy, I attempted to access an external source of support
in the form of the community of service providers and advocates (Choi et al., 2011).

Ayala et al. (2012) have documented relationships between HIV risk behaviors and so-
cial discrimination and financial hardship in the lives of racial/ethnic minority gay men.
Economics and social discrimination are a driving force in being able to access healthcare
and finding out benefits when needed. These are underlying determinants in seeking out
social support and in pursuing intimate relationships with other men. I moved away from



the future, and the investments that would infer a future (Harding & Molloy, 2008). I would
remain in this chaos for years until other matters—a long-term relationship, a tenure-track
position, and a stable physical health—began to shift my focus away from the moment.


Death can sneak in anywhere. At the park, in the bar, reading social media, going through
my contacts on my mobile phone, filling out paperwork at the new job. Life insurance,
healthcare plans, health care proxy, beneficiaries, emergency contacts—such simple words
take on new meaning after living with HIV longer than I expected. Thinking about the rest
of my life, even after it’s over.

Most of my past is buried or scattered to the ashes. Memories before Facebook, the tu-
multuous days and nights of being newly gay in the clubs, the running of streets in hopes
of finding something amazing that will make it all worthwhile, that young boy: so few
around me have seen him, can remember him past the body and cantankerous man that’s
emerged. By twenty-three, I had grown inured to a funeral’s awkward tension. By forty, I
am—apparently—one of those people that you call when there’s a drug emergency or some-
one dies. Years stamped on me like a passport. At some point along the way, I lost my door
pass to the clubs.

I have not planned for a beneficiary. I have a dog but no children. My brothers’ kids are
comfortably ensconced in financial security. I have yet to put aside money for my crema-
tion and funeral. Most of my friends also have HIV. We do not know how to frame our end-
ings or our legacies. We only know what it’s like when someone is gone, when their number
is still in our phone, when their birthday still appears in our reminders—years after they died.
I am afraid of disappearing. Of being that person haunting someone’s cell. Of an unfinished
life. Maybe we all are. But it’s inside me. I have the diagnosis.

What about my friend from college and her daughter? No matter how troubled or sketchy
I’ve been, this friend has insisted that I stay part of her life, through her graduate degrees,
marriage, tenure, child birthing, divorce, and child-rearing. I’m unsure how she will take this
conversation. Am I saying that she can’t raise her child? Am I intruding on her private life?
Do I deserve a place in this circle? When she thanks me and laughs at my nervousness, the
anxiety lessens. If nothing else, this little girl will receive my retirement when I pass; one
life is improved by my living. So many tantrums, so much drama—all with the intent of
being remembered, of marking this world. I haven’t been the easiest person to date, I’m

At the new job, I am confronted by disclosure again. Do I admit to my HIV status amongst
faculty or students? I know a few others that have both a doctorate and HIV. Most are clos-
eted, afraid of what people will think about them. They consider HIV a reflection of their
own intrinsic value apparently. One other is out and he works as an administrator on cam-
pus. Would he fare so well in the research arena? Will I? These are the questions that I must
come to grips with in order to join the university faculty, so I know where I stand within their
rules and boundaries.

Is it too late to be a partner? After the last fight, the final blow, can we find each other
again? My friends tease that I keep in touch with all my ex-boyfriends. Not true. It’s just the
serious ones. My friends don’t understand what I have put these men through, the parts of



me reserved only for intimate moments—the season of insecurities and the need to be whole.
But I want him, that one where everything is unfinished. Where he’s seen my worst and
still comes back. No matter what everyone says. This moment is a love letter between men.


Past research has shown that gay men living with HIV/AIDS in the United States go
through various points of identity formation. Often there is a point where one has to decide
how to live and how to die (Baumgartner & David, 2009; Tsarenko & Polonsky, 2011).
These are neither oppositional nor in some direct linear progression: rather, like with most
identity, they present directions that people move towards (or away) constantly. I came to
terms with the future at the point where I had to manage an institutionalized benefits pack-
age—something that has only recently become part of my family story.

For a gay man, being “out” about an HIV-positive status brings your sex life into focus.
People understand that—for infection to occur—that the gay man probably had sex with an-
other man. Without a condom. This flies against what Corey and Nakayama (2012) call the
normative “tragic script, alone, sad and miserable, or the youth script, where growing old
is tantamount to ritualized horror, or the marriage script, where the gay couple achieves
happiness by emulating the joyous life of the married couple, children and all” (p. 20). By
being “out,” I am consciously working against narratives about growing old or being for-
ever youthful; this status makes people uncomfortable asking about my life with my part-
ner(s). In academia, discourse defining what is “appropriate” tends towards normative
standards on sexuality, race, class and gender. Entering the university, for the first time in
decades, I worry about my public history as an activist, as someone concerned with social
change, as a person who believes that being “out” about my HIV-status is important. I un-
derstand that these actions, events and statements follow my digital footprint, that my pol-
itics about sexuality and health will follow me into the classroom (Corey & Nakayama,
2012). I understand my friends living with HIV who have doctorate degrees who choose to
not come “out” and avoid academic placements.

Romantic and intimate relationships are a concern for people living with HIV/AIDS
(Waddell & Messeri, 2006; Zea et al., 2005). Fear of rejection can result in not disclosing
HIV-status to prospective sex partners (Baumgartner & David, 2009; Tsarenko & Polonsky,
2011; Zea et al., 2005). This level of stigma is pervasive and exists in multiple countries and
contexts (Trapence et al., 2012). When I was first diagnosed, my brother commented, “Why
would anyone date someone with HIV? It’s a death sentence.” Over the years, I have em-
ployed various ways to disclose: sometimes arbitrarily to everyone in hearing range, some-
times nuanced such as leaving my medication out or explaining to my sexual partner “If
someone wants to use a condom in sex, you should just let them.” While some do develop
strategies at managing the social stigma, there are others with far less success in their tac-
tics (Choi et al., 2011). In addition, stigma is a phenomenon at the structural and social
level, so there are some limits to an individual’s capacity to mitigate the entire social struc-
ture (Ayala et al., 2012). I do not know if the receptionists at the dentists office were talk-
ing about me as I waited for my appointment, I only know that I was alone in the reception
area, that I had completed my patient intake form honestly (including admitting I had HIV),
and they called each other out and pointed at me. To this day, I resist going to the dentist.



Understanding the social and interpersonal dynamics is key to moving forward, although
some researchers would limit their view of the epidemic to the biomedical and not mention
social stigma as a barrier to ending the AIDS epidemic (Dieffenback & Fauci, 2011). Yet re-
search continues to show that social support in intimate relationships helps with treatment
adherence (Campo et al., 2007; Waddell & Messeri, 2006). Those closest to me remind me
to take my pill, even when we are out partying.

While people living with HIV/AIDS have always been able to—and indeed have—pro-
created, changes in policy and medical care have made this process more accessible (CDC,
2006; Dieffenback & Fauci, 2011). These advances do focus attention on the notion of
legacy—a consideration that I am finally able to entertain. Estate planning, including iden-
tifying and negotiating beneficiaries, has to become part of the HIV social service industry.
After the diagnosis, I was still haunted by the specter (real or perceived) of death (Baum-
gartner, 2012; Harding & Molloy, 2008).

The growing population of people living with HIV/AIDS getting older is a concern in the
health literature (CDC, 2010). There is still a dearth of research on the impact of HAART
over time (Tsarenko & Polonsky, 2011). While I feel comfortable today with my medica-
tion, I recently had a scare and had to switch medications. The incident left me cautious
about treatment. I understand now that HAART and other treatment is not a static process,
that I am part of a dynamic partnership with my doctor and pharmaceutical companies, that
I have to pay attention to little changes in my body. Identifying current social frames and
meanings within their temporal context is important in HIV, as people living with HIV/AIDS
make choices and develop identities within these frames (Baumgartner, 2012). Recogniz-
ing the impact on personal and community identity, on the individual body and the larger
health outcomes, requires consistent and ongoing research projects.


There is a social meaning to disease beyond the biological health condition, and these val-
ues and assigned meanings can change over time. In the United Sates, HIV/AIDS has been
associated with substance use, homosexuality, sex and immigrant groups (Triechler, 1999).
These connections have encouraged a moral judgment against those living with HIV/AIDS
(Herek & Glunt, 1988). Even within the gay community, the terms “clean” and “dirty” have
emerged in online dating profiles to indicate HIV-status where being HIV-negative is “clean”
and HIV-positive is “dirty,” assignations that are obviously value-laden. Stigma has been so
pervasive in the United States that even caregivers feel the impact, that even those working
within AIDS organizations may express and/or possess stigmatizing attitudes about people
living with HIV/AIDS (Herek & Glunt, 1988; Kinsler et al., 2007).

HIV/AIDS and the associated symbols have changed over time (Treichler, 1999; Gostin,
2004). Prior to the widespread availability of treatment, HIV/AIDS was considered a death
sentence, and therefore people living with HIV/AIDS constructed meaning out of dying.
With the advent of HAART, people living with HIV/AIDS are living longer—and therefore
the social meaning of having the disease has changed (Tsarenko & Polonsky, 2011).
Amongst the gay community, this has spawned a sense of shame about those of us living
with HIV/AIDS, casting us as a problem that embarrasses the overall community. We are
inconvenient and messy, revealing vulnerabilities that the gay community still possesses.



This identity is ratified within interactions with other gay men, community groups, fam-
ilies and institutions. The changing symbol system is embedded within these interactions.
While HIV/AIDS is no longer a death sentence, it remains a potent stigmatizing identity
(Tsarenko & Polonsky, 2011). Public health institutions problematize the identity by man-
dating HIV disclosure. Gay community organizers, in this project, have gone further and dis-
closed on behalf of the researcher. These compulsory methods ignore the social and legal
constructions that discriminate against people living with HIV (McArthur, 2009), and they
selectively sidestep the psychological theory on disclosure (Jourard, 1971). Disclosure is
contingent on multiple personal and social factors, including the value of the relationship
and the amount of disclosure exchange that occurs (Jourard, 1971; Zea et al., 2004).

The social interactions presented in this project point towards a shifting identity for those
living with HIV (Baumgartner, 2012). Where there was a moment where “AIDS victims”
were presented in a sympathetic light, the ongoing epidemic has undermined these efforts
as “AIDS fatigue” erodes community mobilization efforts and social capital about working
in HIV/AIDS (Gostin, 2004). A public HIV identity is no longer considered “heroic,” a phe-
nomenon that perhaps discourages people to disclose their HIV-status.

Within this frame about HIV/AIDS, the body becomes the enemy. When a diagnosis oc-
curs, the body changes beyond previous expectations (Tsarenko & Polonsky, 2011). In the
gay community, the body becomes the point of vulnerability and the infectious agent (Baum-
gartner, 2012; Collins, 1998). This narrative places HIV/AIDS as part of an irreconcilable
difference between gay men and mainstream society—as if homophobia and heteronorma-
tivity were not present and problematic (Choi et al., 2011; Cohen, 1999; Dowsett, 1996;
Gostin, 2004).

The science of HIV treatment has advanced: we know more about various ways to inter-
vene in transmission (Dieffenback & Fauci, 2011). This should promulgate new conceptions
of the identity of living with HIV. The current state of public health has yet to acknowledge
and incorporate these shifting identities. Since HAART, organizations that promote the
voices of people living with HIV have seemed to be under more strenuous challenges and
have, in fact, begun fading (Ward, 2000). Where these limits present challenges to AIDS
service organizations, the success of HIV science advancements are contingent on the up-
take and understanding of the tools within the community of people living with HIV (Val-
lely et al., 2007).


I found three primary points in living with HIV: the diagnosis, the progression to AIDS,
and mortality. Other research has documented that people living with HIV have: resituated
themselves from passive patients to health advocates (Brashers et al., 2000; Epstein, 1995);
built organizations, community groups, and leadership positions (Trapence et al., 2012);
used social networks to help with treatment adherence and mental health (Waddell &
Messeri, 2006; Zea et al., 2005); continued to seek out intimate partners as well as other peo-
ple living with HIV/AIDS (Baumgartner & David, 2009; Tsarenko & Polonsky, 2011); and
recognized that medical care is a critical part of moving forward (Harding & Molloy, 2008,
Campo et al., 2007; Tsarenko & Polonsky, 2011). I have yet to be comfortable with all of
these facets of my life: since the diagnosis, I am consistently surprised at changes in my
body, and my own understanding and feelings about these transformations.



HIV and other health issues benefit when explored through autoethnography. Richards
(2008) posits that the internal understanding of disease is important in the context of clini-
cal interactions, that autoethnography works against a “medicalized narrative” and builds
subjectivity rather than relegating people to being “objects of study” (p. 1719). This narra-
tive deepens understanding of the personal impact of stigma, treatment and social support.
While autoethnography has not been focused in the health literature, it remains a viable ex-
ploration of health and disease in society (Richards, 2008). Autoethnography removes the
distance that social science research can unintentionally encourage about the phenomenon,
and—in the case of potentially stigmatizing conditions—the proximity of autoethnographic
methods can provide a more intimate and personal sense of what the patient undergoes at
the clinic, in society and amongst family (Vande Berg & Trujillo, 2008).

This project recognizes that memory can be a problematic tool. Tullis et al. (2009) assert
“memory—or the accuracy of the memory—affects the authenticity of the story” (p. 190).
The researcher has worked to situate memory within the personal, and referenced within
other areas from that time (the journal entries). I have purposefully looked at these mo-
ments within multiple studies that could explicate these moments beyond the personal. I
have not attempted to clean up the voice to discern a more stable trajectory; rather I have
included the fragmentary style of these memories and journal entries. It follows the con-
flicted, back and forth, evolving positionality that is living with HIV today. For au-
toethnography to be productive, the researcher has to be able to critique the experience, the
memory and the possible interpretations.

Butler (1993) points out, “One does not stand at an instrumental distance from the terms
by which one experiences violation. Occupied by such terms and yet occupying them one-
self risks a complicity, a repetition, a relapse into injury, but it is also the occasion to work
the mobilizing power of injury…. The compulsion to repeat an injury is not necessarily the
compulsion to repeat the injury in the same way or to stay fully within the traumatic orbit
of that injury” (p. 124). In this way, my journey in this project is not meant to stay within
the confines of victimization, the trauma of confronting stigma, or the vulnerability present
in illness; it is to move this discussion beyond those frames while understanding the limits
inherent in these settings. I do not put this project forth as a means of claiming the HIV po-
sition as my sole property, and even within that, that this one analysis of these series of
memories are my only experience of HIV. It is a way of organizing information in a way that
makes sense to those who do not live with HIV, as well as a lighthouse for those who do have
HIV—to discern the meaning of having HIV in these times of biomedical advancement and
shifting policy and funding. This project stakes out a claim for voice in HIV and commu-
nication studies, one situated within being gay and being a racial minority, one that pro-
motes visibility in public health (Trapence et al., 2012) and advances an external source
that can provide a source of strength for others facing similar challenges (Choi et al., 2011).


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