Opening video transcript:
In 2013 I wrote an article for A Voice for men, titled Gender Disparity in Criminal Court. In that article, I highlighted some research on the topic by an assistant law professor at the University of Michigan named Sonja Starr. Starr studied data from four different sources; the U.S. Marshals’ Service , the Executive Office of U.S. Attorneys , the Administrative Office of the U.S. Courts, and the U.S. Sentencing Commission; all accessed through the Bureau of Justice Statistics, which provided inter-agency linking files that allowed cases to be traced from arrest through sentencing.
She found that at every step of the process within the criminal justice system from the arrival of police on the scene, to time served, women receive more lenient treatment than men over the same crimes with the same influencing conditions.
Among the various biases that factor into the gaps in response to women’s crimes, Starr identified a particular phenomenon, the description of which she labeled “The girlfriend theory.” The girlfriend theory is described as follows:
“In group offenses, another factor affecting culpability is relative role. Women might be viewed as minor players—perhaps mere accessories of their male romantic partners. Prosecutors and judges may consider such women less dangerous, less morally culpable, or useful sources of testimony. While leniency may be appropriate in such cases (see Raeder ), some lawyers I spoke to suggested that such perceptions are not always justified by the facts; in cases involving couples, it may just be assumed that the female is the ‘follower.”’
Starr went on to point out that while this theory cannot explain the large disparities that persist even in single-defendant cases, it does appear to explain at least part of these gaps. If “the girlfriend theory” is a good label for the description of this phenomenon, and it does seem to be, then “the girlfriend argument” would be a good label for the act of attempting to exploit it.
Does it, by any chance, sound familiar?
It might if you’ve been following, to the best of your ability, the trial of Ghislaine Maxwell, who has been accused of sex crimes committed in partnership with Jeffrey Epstein. For the few listeners who have not heard of this case, Epstein was an American investment banker who was extraordinarily well connected among elites in politics, business, finance, and the entertainment industry, and who turned out to be running a major sex trafficking operation that included underage girls, a private island resort, and a private jet known as the Lolita Express. It initially appeared his case would be swept under the rug with a controversially lenient plea deal, but in 2019 he was arrested again as more information became publicly available. There was much speculation on the details of his charges and whether his trial would expose sex crimes committed by any of the well-known elites who were part of his circle of associates, but instead, Epstein died in his jail cell before his hearing. The medical examiner’s ruling of sucide was disputed by Epstein’s lawyers, and to say the least, has been the subject of public skepticism and controversy ever since.
Already the public is clamoring for the salacious details of who among the couple’s high-profile connections knew about and were a part of their alleged criminal activity. Because the media has reported on the contents of Epstein’s “black book,” (or for the zoomers, a contact list hard copy,) many names have been connected with this case, with little information as to the full extent of every connection, and nothing to distinguish between contacts who might have known about or even been involved in anything illegal, and contacts who were merely connected through financial or other legal activity. There is a lot of speculation that we’re not going to get into as part of this discussion, because until there is solid evidence to back it, it’s all just rumors. We’ll leave the celebrity gossip to the establishment press.
What we are going to focus on is the effort by Ghislaine Maxwell’s defense to capitalize on her sex, and society’s gynocentrism.
From their opening arguments, prosecutors have described Maxwell as an equal partner in what they’ve labeled “a ‘pyramid scheme’ of sexual abuse.”
As Epstein’s partner, Ghislaine Maxwell faced 6 charges:
- Conspiracy to entice minors to travel to engage in illegal sex acts
- Enticement of a minor to travel to engage in illegal sex acts
- Conspiracy to transport minors with intent to engage in criminal sexual activity,
- Transportation of a minor with intent to engage in criminal sexual activity
- Sex trafficking conspiracy
- Sex trafficking of a minor
In response, the defense has portrayed her as a victim, an innocent bystander who is being made a scapegoat for the crimes of “master manipulator” Jeffrey Epstein by gold-digging accusers and prosecutors who needed someone to pursue after Epstein’s death. According to early updates posted by The Independent, defense attorneys even took this as far as comparing Epstein to James Bond, and Maxwell to the biblical figure, Eve, who was “blamed” for triggering the fall of man by giving Adam the fruit from the tree of knowledge. You know, the first person in written human history to use “the devil made me do it” as an excuse.
Defense attorney Bobbi Sternheim is quoted by the Daily Mail following that comparison up by stating that,
“The charges against Ghislaine Maxwell are for things Jeffrey Epstein did. But she is not Jeffrey Epstein. She is not like Jeffrey Epstein and she is not like any of the other men, powerful men, moguls, who abused women.”
In the United States of America, everyone has the legal right to due process of law when accused of a crime. The defendant has the right to confront her accusers, to present exculpatory evidence in her defense, and to have a fair and impartial hearing in regard to the allegations she is facing. In this case, we’re not looking at a defendant who has challenged the authenticity of the allegations she faces, but instead, focused on their accuracy, and contested her accountability for them.
Early on, the girlfriend argument seemed to be her main weapon… not the claim that Maxwell did nothing wrong, but that she is not culpable for any wrongdoing.
Because anything she did, she did under the influence – dare we say, under the thrall – of not just Epstein, but as her attorney stated, “powerful men.”
Based on that opening attack, I fully expected to see the defense pointing the finger at some of the couple’s high-powered male associates, accusing them of helping Epstein coerce Maxwell into grooming and raping young girls against her will. If that had been the lynchpin of her case, it would have made an interesting public test of the girlfriend argument, but that argument seems to have remained merely an undercurrent highlighted at the beginning and end of the trial. In their closing arguments, the defense specifically accused Epstein of manipulating and exploiting Maxwell. ““Do you know Ghislaine’s lifestyle before Epstein, and after? Maybe it was Jeffrey who needed Ghislaine and her connection, and not the other way around.” The question is, does the defense expect the jury to believe Maxwell spent many years intimately involved with a sexual predator, but remained completely oblivious to his actions involving her associates?
Perhaps that is what made the other prong of her defense so important.
During the trial, Maxwell’s attorneys challenged the accuracy of the accusers’ descriptions of their memories, calling in an expert to testify against the value of “recovered memory” in witness testimony. The defense didn’t attack the core details of the allegations, but coinciding details that could undermine the witness’s claims about when and where she alleges that those core details occurred. In their closing arguments, the defense accused the state of manipulating its witnesses to support a narrative. It is entirely possible that investigators and prosecutors wrongly influenced accusers’ testimony, leading to at least some individual allegations against both Maxwell and Epstein that were inaccurate or even outright false.
This is a style that feminists have criticized as a sexist attack on victims’ lived experience when used to defend men against sexual misconduct allegations, but it is possible that this could exonerate Maxwell, and even call the scope & extent of Epstein’s illegal activities into question. It’s also possible that the jury will not draw that conclusion from the overall combination of evidence, which includes images, as well as phone, text, and electronic messages that haven’t been released to the public, and other evidence from the investigation into Epstein. It’s even possible that we’ll never know what determines the jury’s final verdict because so much of the evidence is not available to the public.
Additionally, Maxwell’s defense was prevented from using a significant portion of their set of witnesses as a result of objections by the prosecution and standards set by the judge. Even if the evidence presented convinces the jury that she is guilty of the charges she faces, this could provide grounds for an appeal that could lead to the verdict being overturned. If the judge and the prosecution had looked for a way to avoid jailing a woman accused of sex crimes without overtly discriminating in her favor, they couldn’t have found a more hands-off, sneakier way to do it than to make it a result of such an obvious due process violation. Meanwhile, in a December 8 article for Vanity Fair, writer Gabriel Sherman pointed out that prosecutors also appeared to be botching their case, writing:
“The list of prosecutorial missteps is long. Victims have appeared unprepared for cross-examination. High-profile coconspirators have not yet been called to testify about Maxwell’s alleged role in Epstein’s child sex trafficking operation. On Tuesday, prosecutors stunned reporters in the courthouse viewing room by announcing the government intends to rest its case before Friday—weeks earlier than anticipated. It all raises the painful question: Will Maxwell go free?”
Among other things, such an outcome could lead to misplaced public anger at due process, rather than outrage over misconduct or mistakes made by the prosecution and the judge… an outcome feminists could conveniently exploit in their push for more infringements on due process in sexual misconduct cases, trotting out the poor victims, deprived of justice by a system they will claim was designed for the benefit of perpetrators. This is nothing new. They’ve been doing that for decades in response to due process standards like the right to confront one’s accuser in a court of law, the right to present exculpatory evidence, and even the act of challenging the veracity of accusers’ stories as Maxwell’s defense has done in this case. “Believe Women,” the battle cry of the last century, has been very effective against male defendants in these cases. A female defendant with a female-led defense team facing female accusers and a female-led prosecution team before a female judge raises a rather tough question for feminists:
Believe women? Which women? Is it possible to believe all of them? Who do we believe when none of them are entirely credible?
This week, HBR Talk will discuss the girlfriend argument and the influence of gynocentrism on the criminal justice system. Is the Ghislaine Maxwell case unusual, or is it just another run-of-the-mill example of a systemic problem that undermines female accountability in our society? The discussion streams on multiple platforms. You can tune in to the youtube livestream, or find other listening options on honeybadgerbrigade.com.
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