You probably have heard this before:
“She asked for it.” “She didn’t say no.” “She really meant ‘yes’ when she said ‘no.’” “She looks older than her chronological age.” “She [a minor] was as much in control of the situation as the defendant [her teacher when he raped her].” “Well, you know, this wasn’t this forcible, beat-up type rape.” “Even though she was drunk, she consented and knew what she was doing.” “Well boys will be boys; what else would you expect?” “She just ‘cried’ rape.” “It didn’t happen. She’s lying ‘cause she wants revenge.” “She could have prevented it if she… had only tried hard enough… had fought back more… etc.” These are all rape myth statements that have been heard in the courtroom as well as out in the public arena.
The flowing article was written by me for Pennsylvania NOW on their website.
This article gives an overview of problems in the judicial system when judges and others rely on this form of gender bias in their courtroom. Pennsylvania NOW posted the original of this article on August 31 and Central Oregon Coast NOW reblogged it. Thanks everyone for spreading the word about this problem and showing others what can be done to push back on this form of misogyny in the judiciary.
We were one of the complainants who filed a Judicial Conduct complaint against Baugh last fall. We were in court today to tell Baugh, the Supreme Court, and the country why we filed the complaint and what we thought of Baugh’s actions as a sitting judge who was supposed to fairly mete out justice for all.
Unfortunately Montana NOW and Pennsylvania NOW were not allowed to speak about our concerns before the Court. We had expected to deliver these comments publicly. Since we were unable to speak them, we sent our statement directly to Baugh. We have also let the press know that this statement is available on this blog.
We filed this complaint on behalf of men, women, and children in Montana as well as men, women, and children across the country. We believe that it is long past time for Montana’s authorities to protect the right-thinking citizens of and visitors to Montana from sexual predators rather than freeing those predators so that they can rape again.
We represent the more than 250,000 people around the world who called for your resignation or removal and the 350 sexual assault survivors who signed a letter calling for your removal. When we filed our complaint to the Judicial Standards Commission on September 24, we included copies of the petitioners’ names, the sexual assault survivor letter and copies of two news articles condemning your actions.
On Monday, August 26, 2013, you sentenced confessed child rapist Stacey Rambold to only 31 days in jail for that offense. You justified that slap-on-the-wrist sentence by commenting, incredibly, that the 14-year-old child victim – two years under the legal age of consent – was “as much in control” of the rape as her 49-year-old teacher because, according to you, she was “older than her chronological age.” You then attempted to justify this sentence by telling the press that this rape “was not a violent, forcible, beat-the-victim rape, like you see in the movies.”
Mr. Baugh, your victim-blaming, rape-trivializing, rapist-protecting comments and actions come less than a year after the United States Department of Justice was called in to address civil rights violations and rape victim-blaming by the University of Montana, Missoula County and Missoula City authorities over many years.
Our complaint raised three ethical issues that we believed you violated. The issues we raised were:
That you did NOT act at all times in a manner that promoted public confidence in the independence, integrity, and impartiality of the judiciary, and that you did not avoid impropriety and the appearance of impropriety (Rule 1.2);
That you did NOTuphold and apply the law, nor did you perform all duties of your judicial office fairly and impartially (Rule 2.2); and
That you in the performance of your judicial duties, by your words as well as your conduct, showed manifest bias or prejudice against the victim based upon her race, sex, gender, age, and socioeconomic status (Rule 2.3).
The Judicial Standards Commission found that you violated the ethical issue of impropriety. The Montana Supreme Court in overturning your 31-day sentence of Rambold on April 30 essentially found that you violated the second ethical issue by failing to uphold and apply the law. And when the Montana Supreme Court overturned this sentence, they ordered this case to be reassigned to a new judge because your statement at trial evidenced bias against the victim. That essentially means you also violated our third complaint of showing bias against the victim – a young, Hispanic, lower-income girl.
You used three different rape myths to justify your actions. By doing so, you used a form of gender bias that destroyed the integrity of the judicial process and contravened Montana law. Rape myths are forms of gender bias that have no place in a justice system that strives to provide an impartial forum for all participants. As the Honorable Justice Sandra Day O’Connor said in 1994, “When people perceive gender bias in a legal system, whether they suffer from it or not, they lose respect for that system, as well as for the law.”
What did you do? You blamed the victim for the rape. You invoked the belief that this wasn’t “real” rape because it did not involve physical violence. And you invoked the myth of girl provocateur, also known as the Lolita Effect, to deny the power and control a teacher has over his student.
You relied on these rape myths to impose your sentence against Rambold. You trivialized the act of rape by stating that the crime was not a “forcible, beat-up rape.” By doing so you downplayed the fact that a teacher took advantage of and sexually assaulted a girl under his power and control. You blamed the victim by claiming she had control over the rape.
This young girl, Cherice Moralez, experienced such psychological and emotional damage that she ultimately died by suicide even before the case came to trial. Your statements about the victim being as much in control of the situation as Rambold and then giving a slap-on-the-wrist sentence to Rambold is insupportable as a matter of fact and law, given her age and vulnerability.
Children and adolescents are vulnerable to coercion and social pressure by adults and figures of power. Your use of these rape myths diminished and made invisible a young vulnerable girl. Your statements result in a chilling effect on other victims of sexual assault. It also places a chilling effect on the public and others within the judicial system. If we are unable to trust and rely on the justice system to properly weigh the relevant factors in addressing sexual assaults, we all lose confidence in the integrity of the judicial process.
We would have preferred that the Montana Judicial Standards Commission and the Montana Supreme Court had immediately removed you from the bench so that you could no longer impugn the integrity of the court and return the court in Yellowstone County to a full sense of fairness for women, children, and other victims of domestic and sexual violence. Instead they chose to give you a similar 31-day “sentence” that you gave to Stacey Rambold. In his case, it was 31 days in jail with one day suspended; in your case it’s 31 days without pay. We accept that decision. However we are concerned that as long as you remain seated on the bench that the public in Montana, around the country and throughout the world will continue to question the fairness and integrity of the judicial system in Montana.
We therefore suggest that not only do you fully accept today’s censure and the suspension, but that you also apologize for your actions to Cherice’s mother and all victims of sexual and domestic violence and that you immediately either step down or recuse yourself from all future cases handed to you. Enough is enough. Your actions in our opinion require these responses from you.
Please read this great article. Review the research. And help get-out-the-vote. You can help by talking to your unmarried female friends and family members and helping them to register to vote. And the remind them to vote on November 4, 2014.
The Montana Supreme Court has just handed down their decision on the ethics complaints filed against Judge G. Todd Baugh in his mishandling of the rape case against Stacey Rambold. This is the case where Judge Baugh sentenced ex-teacher Stacey Rambold to thirty days in jail for raping one of his 14-year-old students.
In explaining this slap-on-the-wrist sentence, Baugh used several rape myths that showed gender and racial bias against Cherise Morales—the 14 year old, Hispanic girl whom Rambold raped. During the sentencing hearing, Baugh stated that the girl was “as much in control of the situation” as her rapist and that she was “older than her chronological age.” There were a total of eight verified complaints submitted to the Montana Judicial Standards Commission as a result of Judge Baugh’s actions; one of these complaints was filed by Montana NOW and Pennsylvania NOW (see our complaint here and blog summarizing our complaint here).
On April 30, the Montana Supreme Court vacated Rambold’s minimal sentence, largely based on the amicus brief we filed with the court. They remanded the Rambold case back to Yellowstone County District Court. Yesterday they denied Rambold’s request to reconsider. The new sentence will be imposed by the District Court by the end of this month.
Meanwhile, the Court has now followed up on their intent to censure Judge Baugh. Their intent to censure was originally announced in the April 30 decision in the Rambold case. In that opinion, the Court said of Baugh’s behavior:
In the present case, Judge Baugh’s statements reflected an improper basis for his decision and cast serious doubt on the appearance of justice. The idea that C.M. could have “control” of the situation is directly at odds with the law, which holds that a youth is incapable of consent and, therefore, lacks any control over the situation whatsoever. That statement also disregards the serious power disparity that exists between an adult teacher and his minor pupil. In addition, there is no basis in the law for the court’s distinction between the victim’s “chronological age” and the court’s perception of her maturity. Judge Baugh’s comments have given rise to several complaints before the Judicial Standards Commission, which has recommended disciplinary action by this Court. Those complaints will be addressed in a separate proceeding.
In their 4-1 decision today censuring Baugh, the Court indicated that Judge Baugh violated the “Promoting Confidence in the Judiciary” canon.
Violation of Rule 1.2: Promoting public confidence in the independence, integrity, and impartiality of the judiciary and avoiding impropriety or the appearance of impropriety
Baugh’s comments in open court in this case disregarded longstanding Montana law that a person under the age of 16 is legally incapable of consenting to sexual intercourse. His assertion that the victim was “older than her chronological age” is inconsistent with Montana law categorizing child victims of sexual offenses based on their chronological age alone, rather than on subjective perceptions of physical maturity and situational control. In addition, Judge Baugh’s later attempt to retract his sentence and rationale was inconsistent with Montana law. Finally, Judge Baugh made additional inappropriate public statements attempting to justify his actions. Through his unlawful sentence, inappropriate rationale, and subsequent public comments, Judge Baugh has eroded public confidence in the judiciary and created an appearance of impropriety, therefore violating the Montana Code of Judicial Conduct….
There is no place in the Montana judiciary for perpetuating the stereotype that women and girls are responsible for sexual crimes committed against them [emphasis added].
Censure and Suspension
The Court has given Judge Baugh until June 19 to respond to their proposed suspension since he only agreed to public censure on violating this rule. If he does not withdraw his consent to discipline by that date, he will be required to appear before the Montana Supreme Court at 9:30 am on Monday July 1, 2014 for the delivery of public censure by the Court. Then on December 1, 2014, he will be given a 31-day suspension without pay from the bench, thus losing the last month’s pay of his salary before he retires. If he does withdraw his consent for censure, the case will be returned to the Montana Judicial Standards Commission for a formal proceeding.
I suspect that Judge Baugh will accept the censure and suspension. Rumor has it that Judge Baugh is considering stepping down from the bench on July 1 due to the general belief that he cannot fairly rule from the bench because of the public censure. If true, the only effect of the 31-day suspension will be a loss of one month’s salary based on his earlier announcement that he would retire from the bench on December 31.
And as a final food for thought… this 31-day suspension / “sentence” seems to me to be very similar to the 31-day sentence imposed by Judge Baugh on Stacey Rambold for raping a 14-year old. Did the Court have this in mind when they decided on the length of the suspension? Is this Tit for Tat for his use of rape myths? Who knows?
In several earlier blogs, I’ve written about the minimal sentence given to convicted rapist Stacey Rambold. This sentence was overturned by the Montana Supreme Court at the end of April. The case was remanded back to Yellowstone County District Court to a new judge for resentencing for a minimum of two years. At the end of last week, Rambold’s attorney, Jay Lansing, appealed the decision calling for a rehearing in the case. And what was his argument? “It was her fault.” In other words, more victim-blaming.
Attorney Jay Lansing is appealing the MT Supreme Court’s decision to re-sentence Stacey Rambold for raping Cherise Morales, a 14 year old student he taught at the high school. She later died from suicide.
Lansing said in the appeal filed with the Court on May 14:
In the Opinion in this case … the Court held that Judge Baugh’s statements reflected an improper basis for his sentencing decision. Specifically, the Court stated that consideration of any control that C.M. could have had of the situation is directly at odds with the law which holds that a youth is incapable of consent and therefore lacks any control over the situation; and that there was no basis in the law for the District Court’s distinction between C.M.’s chronological age and the District Court’s perception of her maturity.
Mr. Rambold interprets this ruling by the Court to mean that a sentencing court may not consider the victim’s role in the offense, the victim’s level of participation in the offense, or the victim’s actual consent in determining a reasonable sentence for a defendant.
Mr. Rambold contends that such a decision is in direct conflict with [previous decisions] where the Court stated the established rule that a sentencing court may consider any relevant information relating to the nature and circumstances of the crime, the defendant’s character, background, history, and mental and physical condition, and any other information that the court considers to have probative force.
Lansing then goes on to say that his argument “is not ‘victim blaming.’”
I completely disagree with this. Lansing, just like Judge Baugh, minimizes the rape of C.M. He says that Cherise knew her teacher and accepted his advances, and that this isn’t as “bad” as stranger rape. He suggests that the court should consider a victim’s “role, level of participation, or consent” [emphasis added]- in a crime against the victim. This truly flies in the face of the law and absolutely is victim blaming. To compound this upside down view of the law, he then goes on to present two hypothetical situations — one between a 19 year old and his 14 year old “girlfriend” and a second one dealing with stranger rape.
Lansing then concludes that Rambold and Cherise share the blame for the rape. He seems to say that the circumstances surrounding this rape of a minor to her teacher’s advances isn’t all that bad and therefore no change in the original sentence should be made.
One point that must be clearly stated and emphasized is that there is a distinction between consideration of C.M.’s role and participation as a defense to the charge and consideration of C.M.’s role and participation in determining a reasonable and appropriate sentence. … C.M.’s role, level of participation, and consent are relevant information relating to the nature and circumstances of the offense and are to be considered in fashioning a reasonable sentence.
In justifying his victim blaming, Lansing uses this truly twisted argument that is nothing but victim blaming. Yes, a court may consider relevant evidence for purposes of determining guilt or sentencing. But then to say that the blame is shared and therefore the rape is, in some sense justifiable, is outrageous and appalling.
Judge Baugh’s original victim-blaming comments were bad enough. Just like Baugh, Lansing uses similar rape myths in his argument to the Court. He first blames the victim (while denying this in the same breath). Then he goes on with his hypothetical relationship and stranger rape examples to imply that this rape was non-violent—thus using the myth of the Nonviolent Rapist and Implied Consent to justify the minimal sentence given to Rambold last summer. Rambold’s lawyer’s attempt to use these myths to somehow justify both the rape and the minimal sentence originally handed down are, IMHO, stupendously horrendous.
In this case, both Judge Baugh and Attorney Lansing use outdated, victim-blaming myths about women and sexual assault in order to justify both their actions and the actions of the defendant. They both represent parts of the legal justice system. If they are representative of the Montana judicial system, our judicial system is failing our communities.
Gender bias in the courts is unacceptable. Whether that is in Montana, where this case is occurring; in Pennsylvania where I live and where the Gerry Sandusky child sexual assaults happened; or anywhere else in the country.
In Montana NOW’s and Pennsylvania NOW’s original complaint to the Montana Judicial Standards Commission, we asked that the Court implement a mandatory educational program for the judiciary. We stated in that complaint that we want the Montana Supreme Court to:
I believe that this proposed mandatory educational program should be extended to all of the participants within the legal justice system – judges, lawyers, law enforcement and anyone else within the system that could impact the treatment of victims and survivors of sexual assault. Then and only then will we start addressing this problem of victim blaming. Let’s stop it now.
In August 2013, Judge G. Todd Baugh issued a 30-day jail term for one guilty plea by Stacey Rambold for one count of sexual intercourse without consent against a 14-year old minor. NOW, UltraViolet, and people around the world expressed outrage at this judge’s use of rape myths to minimize the assault and create a sentence that was way below the mandatory minimum for such an offense. Following the initial outrage, Montana NOW and Pennsylvania NOW filed a joint complaint with the Montana Judicial Standards Commission about Judge Baugh’s violation of the state’s judicial Rules of Conduct. Then last weekend, Montana NOW and Pennsylvania NOW responded to Judge Baugh’s refusal to acknowledge bias and prejudice in his sentencing of Rambold.
After finding out about the AG’s intent to appeal the original jail term, Montana NOW and Pennsylvania NOW looked into the possibility of filing an amicus brief to the court to support the appeal. We contacted two members of our network of women’s legal advocacy organizations—The Women’s Law Project and Legal Momentum—to see if there was any interest in pursuing this amicus. They were interested and helped put us in contact with Legal Voice and the Sexual Violence Law Center. Both of these organizations are based in Seattle, Washington and serve women in Montana. As a result, all five organizations agreed to take on this amicus; Attorney Vanessa Soriano Power and other members of the law firm Stoel Rives LLP took the lead in writing our brief. Thank you all for assisting and working with us on this brief. We couldn’t have done it without your legal expertise and caring about this miscarriage of justice.
The amicus brief we filed focuses on rape myths and their inappropriate impact in adjudicating and sentencing in sexual-assault cases. We are asking the court to take the effect of these types of myths into account when making their decision in this case and, upon remand, to assign the case to a new judge for sentencing.
We state in this brief that rape myths are a form of gender bias that destroys the integrity of the judicial process and contravenes Montana law. The three myths we focus on are:
Blaming the Victim
The Myth of the Nonviolent Rapist and Implied Consent
The Lolita Effect and Power Dynamics in Sexual Assaults
After presenting the background on these myths, we then link them to what we believe happened in this case based on the statements made by Judge Baugh and his minimal sentencing of Rambold. We show that the District Court’s erroneous reliance on these rape myths pose a threat to sexual assault survivors’ confidence in the judicial system. We then request that the Supreme Court use their supervisory authority to not only remand the case back to the District Court, but also to assign a new judge for the new sentencing.
Here’s the full brief for your perusal. It was sent via overnight mail on December 12, 2013 to all parties involved in this case for delivery by noon MST today, Friday, December 13, 2013.
Marian Bradley, President of Montana NOW speaking at the delivery of the NOW complaint to the MT Judicial Commission.
Judge Baugh responded to our complaint on November 13, 2013. The Commission sent us a copy of his response on November 19, 2013. They gave us twenty days to review and advise the Commission on the factual accuracy of Judge Baugh’s response. Our response was faxed to the Commission on Saturday morning, December 7, 2013.
In our initial Complaint, Montana NOW and Pennsylvania NOW alleged that Judge G. Todd Baugh violated the following three Ethics Rules:
Rule 1.2 says, “promotes public confidence in the independence, integrity,and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.”
Rule 2.2 says, “shall uphold and apply the law, and shall perform all duties of judicial office fairly and impartially.”
Rule 2.3 says, “shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, or engage in harassment, including but not limited to bias, prejudice, or harassment based upon race, sex, gender, …socioeconomic status, …”
In his response to our Complaint (and in the press), Judge Baugh acknowledges that he violated Rule 1.2 but denies any violation of Rule 2.2 or 2.3. We believe he is in error and continues to violate these two rules in addition to Rule 1.2. Judge Baugh claims in his response to our Complaint that he did not violate either Rule 2.2 or 2.3 because he “read” the materials presented to him. He then goes on to say, “Some phrases [of what I read] stuck in my mind, but it was inappropriate to repeat them.”
We reviewed his complaint and saw additional comments of continued disregard for the performance of his duties and bias in sexual assault cases. For example as just mentioned, Judge Baugh says that he now won’t repeat whatever it was that “stuck in his mind” but was “inappropriate” to repeat. This along with many other statements during and after the sentencing trial, in the press, and in his response all point to error in his refusal to acknowledge his violation of all three ethics rules.
Our response directly supports our initial Complaint of the violation of Rules 1.2, 2.2, and 2.3 based upon Judge Baugh’s response. We added additional comments about this particular case. In addition, we included supporting information as to what other judges throughout the country have said in relation to adjudicating and sentencing in sexual assault cases in general. We believe that this supporting commentary from fellow judges backs up our concerns about the mishandling of this case.
The following is a copy of the Response that we filed on Saturday
We believe that Judge Baugh violated all three rules (1.2, 2.2, and 2.3). He agrees with us that he violated Rule 1.2 in that he failed to promote public confidence and failed to avoid impropriety in his statement and minimal sentencing of Rambold.
We disagree completely in his refusal to acknowledge the violation of Rules 2.2 and 2.3. He did NOT uphold and apply the law relating to the sexual assault of a minor. He did not perform his duties fairly and impartially. His words, his conduct throughout this case and in the media, and his response to our Complaint continue to show bias or prejudice based upon race, sex, gender, and socioeconomic status.
Judge Baugh’s statements and behavior need more than a letter of censure which he claims he was told by a member of the panel in October that he would get. Judge Baugh listened to the recommendations of the Defendant and not to the law. Again, with his Response to our Complaint, Judge Baugh continues to show that he has no regard for the law in the area of sexual assaults of minors and thus believes that censure is the correct remedy for violating “only” one rule – Rule 1.2. He takes no responsibility whatsoever for violating Rules 2.2 and 2.3.
Hopefully the Judicial Standards Commission will do the morally and legally right thing, find that he violated all three rules, and remove Judge G. Todd Bench from the bench. And if the case is remanded back to the local court by the Supreme Court for resentencing, we hope that this case will be given to another judge.
This complaint was created over the last 3 weeks or so by Montana NOW and Pennsylvania NOW, with the assistance of the Women’s Law Project and Legal Momentum. Marian Bradley, President of MT NOW and I, in my capacity as a member of the Executive Committee of PA NOW worked very closely with Lynn Hecht Schafran, Director of Legal Momentum’s National Judicial Education Program and Carol Tracy, Executive Director; Susan Frietsche, Senior Attorney; and Terry Fromson, Managing Attorney at the Women’s Law Project. These four women assisted us in crafting the legal wording for this complaint. We thank them their knowledge and assistance.
We would also like to thank We are Ultra Violet and Fitzgibbon Media for their participation in this effort. We are so grateful to Ultra Violet for their work in gathering signatures for their petition and sharing those names with us and for the time, energy and unending support they have given us. And our thanks to Fitzgibbon Media for their help with scheduling media, press releases and all things media related.
The complaint focuses on Judge G. Todd Baugh’s judicial mishandling of a highly publicized rape case, his statements blaming the victim, and his failure to follow state law in sentencing Stacey Rambold who plead guilty to one count of sexual intercourse without consent of a 14-year old Hispanic girl who later died from suicide.
In the complaint, we present the background of the case, a summary of Judge G. Todd Baugh’s misconduct, cite the portions of the judicial rules of conduct that were violated, and cite thousands of witnesses. These witnesses include more than 250,000 people around the world who are calling for either a resignation or removal of Judge Baugh (see here, here, here, and here for the wordings of the four on-line petitions), media reports from two prominent journalists (here and here), and 350 sexual assault survivors who signed a letter calling for the removal of Judge Baugh. The complaint was delivered to the Commission with copies of the signatures of the petition signers, the letter from the sexual assault survivors, and links to the two news articles condemning Judge Baugh’s actions.
The following is a copy of the complaint that we filed:
Marian Bradley, President of Montana NOW speaking at the delivery of the NOW complaint to the MT Judicial Standards Commission.
Note that under Montana state law, once a complaint is filed, all proceedings remain confidential unless the matter is referred to the Montana Supreme Court for potential judicial disciplinary action. So unless the state’s Supreme Court becomes involved, the public will not know the results of our complaint. But meanwhile you can see what we are demanding.
And a last-minute addition. On Monday afternoon, September 23, Marian Bradley talked to the Montana Attorney General’s office (Tim Fox-R is the AG). She asked about the possibility of NOW filing an amicus brief to the Montana Supreme Court in relation to the Attorney General’s appeal of Judge Baugh’s sentence in the Rambold case. They informed her that anyone is free to seek permission to file such a brief and then directed her to the office of the Clerk of the Montana Supreme Court for more information on that process.
A petition has been started on the Ultraviolet website regarding Judge G. Todd Baugh. In part, it says,
Earlier this week, Montana Judge G. Todd Baugh gave a teacher who raped his 14-year-old student a 30-day jail sentence. Even worse, the judge said the girl was “as much in control of the situation” as her rapist and that she was “older than her chronological age.” THIS is rape culture at its worst.
The one going to the Department of State is inappropriately targeted. Oversight for the judicial system in not held within the Department of State. That’s because of our constitutional requirement that we keep separate the duties and responsibilities of the executive and judicial branches of government.
These two judicial-branch entities in Montana have oversight on judicial affairs and the conduct of the judiciary. So this site is the CORRECT place to go if you want to sign a petition calling on the removal of MT’s Judge Baugh.
Once again, you want to let Montana know that Judge Baugh must go, click here to sign. Thanks!
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