MARCI A. HAMILTON
Republicans would do well to catch up to the rest of the culture on the issues of sex assault and child sex abuse. They are quickly being outpaced by a society that no longer is willing to wink at the rapist or child abuser. Context for rape and child abuse no longer matters: the people are sick of child sex abuse and sex assault, period, whether it occurs in the religious, sports, school, university, or family arena. Smart politicians are seeing that this is a scourge with no political preference.
Yet, too many Republicans—with rare exceptions like Rep. Jason Spencer of Georgia and Rep. Deborah Hudson of Delaware—are responsible for blocking simple legislative change that would identify the hidden predators and provide justice to victims. And they are doing it for all the wrong reasons.
A Case Study: Ken Starr’s Spectacular Fall from Grace
Starr, the son of a minister, was a literal star in the Republican firmament: he clerked for Chief Justice Warren Burger, was appointed a federal appellate judge of the powerful Court of Appeals for the District of Columbia (1983-89), and then served as the solicitor general (1989-93). During that time he was on President George H.W. Bush’s short list for the Supreme Court, though the appointment eventually went to David Souter. Starr has been a distinguished litigator for Kirkland and Ellis and also served as Independent Counsel (1994-99) investigating the scandals surrounding the Clintons, including the death of Vince Foster and then-President Bill Clinton’s dealings with Monica Lewinsky, which led to the historic House vote to impeach Clinton in 1998. The investigation was politically charged, and Starr was criticized heavily. He even later expressed regret for having taken on the Lewinsky assignment. Still, in 2004, he landed softly as dean of the Pepperdine University School of Law (2004-2010). As dean, he continued to take on headliner cases, including the defense of billionaire Jeffrey Epstein against statutory rape charges involving numerous girls brought to his home. Epstein eventually pled to one charge of soliciting sex from a minor and served minimal time in jail near his home in Palm Beach, Florida.
In 2010, Starr accepted the position of president of Baylor University, a private and distinguished Baptist university. Five years later, the criminal trial and conviction of a former Baylor football player for sexual assault led the university to hire the Pepper Hamilton law firm to do a private investigation. It turned out that the 2015 conviction was not the football team’s first conviction for rape; another former player had been convicted in 2014. The report led Baylor to demote Starr in May 2016 to chancellor and law professor. But that was not the end of the scandal for Starr, who resigned as chancellor the next month. Only two months later, in August 2016, he left the law school. The football coach, Art Briles, also lost his job. Numerous women have joined a Title IX lawsuit against the university for creating the environment that led to their sexual assaults. Still, Starr was recently quoted saying, “I personally have doubts that there were gang rapes.”
I would posit that Ken Starr’s career is a case study for Republicans. You can land one prestigious post after another within the Republican firmament, but the United States now draws the line at a failure to stop sexual assault. Three factors are at play: First, sex assault victims no longer accept the silence that society once imposed on them. Second, the internet tore apart the social fabric of the media and powerful figures that kept a lid on such claims, informed each survivor she (or he) is not alone, and educated the rest of us. Third, self-interested institutions are figuring out that presiding over the cover up of sex assault and child sex abuse leads to no good end.
Now, some may counter this reasoning by pointing to Donald Trump’s election to the United States Presidency despite his own admission that he liked to grab women’s genitals and his association with sex offender Jeffrey Epstein. But his election is a product of the Electoral College. He was soundly beaten in the popular vote by close to 3 million votes. For every other politician, the popular vote is what matters.
The State of Statute of Limitations Reform: Republicans Are the Primary Barrier
The leading edge for law reform to reverse the rape culture is statute of limitations reform for child sex abuse victims. Largely led by Democrats, a significant number of states in recent years moved to eliminate these SOLs and/or to revive expired SOLs, as these maps show. There is much more to be done for child and adult victims, and the worst states in the United States offer some insights into the politics of rape and abuse.
The four worst states in the United States for child sex abuse victims are: Alabama, Michigan, Mississippi, and New York. The legal reason is that for those whose SOLs have expired, the only option is to file a civil lawsuit to shift the cost of the abuse from the victim to the ones who caused it. In these four states, the archaic civil SOLs expire long before virtually any victim is ready to come forward.
Politics is destiny for the rape victims in these four states. In all but New York, the Republicans control the state house and the governor’s office by a large majority. In dysfunctional New York, a Democratic governor is in power, but Republicans control the Senate through a coalition with seven Democrats who call themselves the “Independent Democratic Conference.” There is no question that the Republicans are the reason no movement has happened in New York for the decade in which advocates, including myself, and many others have been making the case for justice.
Typically, what happens with SOL reform when Republicans are in control is that leadership refuses to release it from committee and so no vote on the floor can occur. This has happened in state after state in recent years including New York and Michigan. (Alabama and Mississippi are so far behind on the prevention of rape that SOL reform bills don’t even get filed.) The reason Republicans bottle it up in committee is because no member relishes voting against rape victims in public, right there in front of the press and voters. Therefore, if a bill increasing justice for child rape victims can get beyond a committee to the floor and the light of day, typically it will pass, and pass unanimously. What this tells us is that Republican leadership is at least savvy to the optics of voting against justice for child rape victims. Leadership is not so savvy about the appearance of caring, as Republican leaders like Sen. John J. Flanagan in New York refuse to even meet with the victims and advocates seeking justice for child rape victims.
What Republican leadership is failing to grasp in these four states, and plenty of others including Pennsylvania, is that there is an irrefutable logic in the culture to increase the power of victims to name their perpetrators and to shift the cost of abuse to the perpetrators and institutions that caused it. It’s just the right thing to do. Powerful institutions are engaging in self-inflicted wounds when they side with rapists as Ken Starr, the Catholic bishops, USA Gymnastics and USA Volleyball officials, and many others can inform Republicans.
So why do Republican legislators block SOL reform in these states? No one knows each of their private motives, but the political landscape indicates slavish pandering to religious leaders who have much to hide, whether they are Catholic or Baptist. Yet, the lobbying against victims and in protection of pedophiles is hypocritical in the current culture of extreme religious liberty, and Republican politicians need to do some soul-searching of their own on this issue.
Complicity with Sex Offenders
Catholics and Baptists have united since the Affordable Care Act was passed to argue that it is a violation of their religious liberty rights to be made “complicit” in the use of contraceptives by their employees or to deal with LGBT or same-sex marriages. Republican-appointee judges have been more than willing to hand the religious claimaints wins on the complicity argument in the courts. Indeed, this complicity theory has been the can opener that released the Religious Freedom Restoration Act’s power to undermine women’s rights to reproductive choice and to foment discrimination based on sexual orientation, as evidenced in the reasoning of Burwell v. Hobby Lobby and Zubik v. Burwell at the Supreme Court and the reasoning of Judge Reed O’Connor in recent opinions here and here.
Their complicity reasoning, however, has to work both ways. The argument is that when they make decisions that affect others’ choices involving abortion, birth control, or sexual orientation that they are complicit in those very choices. It is not that they themselves would be engaging in abortion, birth control, or dealing with LGBT individuals, but rather that they are complicit when others make those choices following their actions. So the Little Sisters of the Poor were complicit in their employees’ use of birth control if they permitted birth control to be a part of their overall health plan.
On the very same reasoning, every time a bishop or a Baptist pastor fails to protect a child from rape or sex abuse in his organization, he is complicit in the abuse. The bishop is not the perpetrator, but rather is complicit in the perpetrator’s actions after he fails to block the sex abuse. The same is true for university presidents and Republican politicians. There is a stark choice being offered by the SOL reform movement: predators or children, and their own theory of responsibility nails their culpability.
For each SOL reform bill Republicans block, they are choosing to protect predators and endanger children. In their own religiously-determined universe, that means they are complicit with rape and sex abuse. That is a path to failure. Just ask Ken Starr.
MARCI A. HAMILTON