April 1, 2009
Some early thoughts about gendered realities in the Kent case
We will return to our discussion of the sentencing of former federal district judge Samuel Kent in class this week, and everyone should be sure to review again all the key case documents (here and here) and your own proposed pre-guideline and guideline sentence for defendant Kent.
You should recall that, in our discussion just before break, students proposed a prison sentence as low as six months and as high as 15 years for defendant Kent. Though I did not make much of the fact before, I do not think it was mere coincidence that a male "judge" proposed the lowest sentence for Kent and that a female "judge" proposed the highest sentence for Kent. As I have noted before and will note again and again, gendered realities (both conscious and unconscious) clearly play a significant role in how sex offense cases are handled.
Some of you have at times expressed concern about how often I tend to bring gendered perspectives into our class discussions. To help you understand why I often obsess over gendered realities in law and practice, consider this new research I just came across. The article, which is titled "From Lawyer to Judge: Advancement, Sex, and Name-Calling," has nothing to do with sentencing, but it does provide some worrisome insights into how lawyers judge one another. Here is the abstract:
This paper provides the first empirical test of the Portia Hypothesis: females with masculine monikers are more successful in legal careers. Utilizing South Carolina microdata, we look for correlation between an individual's advancement to a judgeship and his/her name's masculinity, which we construct from the joint empirical distribution of names and gender in the state's entire population of registered voters. We find robust evidence that nominally masculine females are favored over other females. Hence, our results support the Portia Hypothesis.
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Unfortunately, I do not have time to respond now, but even a cursory look shows this research is horrifically flawed and completely useless. It demonstrates nothing, except that 4 female judges - yes, four! - in South Carolina have masculine names: Bruce, Barney, Cameron, and Dale.
Posted by: Portia | Apr 1, 2009 12:21:22 PM
I plan to write a more complete comment explaining the flaws in this study over the next few days.
My apologies for the over-the-top flavor of my previous post. It just frustrates me to see such bad science, because the bad science can become extremely influential.
Posted by: Portia | Apr 1, 2009 12:31:58 PM
Regarding gendered realities generally (not the Portia hypothesis/name study), I think its impossible to separate ones gender from "sentencing" in the Kent, or any other rape case. As a female, I think rape is often in the back of your mind in many situations. You grow up being told that there are these dangers out in the world and that you have to make smart choices to avoid them. I think there are few women who haven't experience forced sexuality in some form, whether its actual rape victimization, the rape of a friend or family member, or even the unwelcome advances of a male in a position of power or a situation that makes a "strong no" uncomfortable. Most men, for a variety of very understandable reasons, probably have not had these experiences. Further, most men probably have never forced themselves on a woman (undoubtedly a good thing), so I think it makes it harder for them to visualize that happening and fully appreciate the consequences the victim faces. Further, women very much appreciate what it means to have a male boss, and all those things go into sentencing decision making.
When I sentenced Kent to 15 years, I couldn't help but put myself in the position of his victims: trying to maintain a job at the federal courthouse and deal with a sexually deviant boss. In addition to being particularly bothered because Kent was chosen and sworn to uphold our laws, his position of power over his victims greatly contributed to my harsh sentence of Kent. I think for a male judge, the decision making process was probably different.
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