March 30, 2012
The Rape Discount
Don't know how many of you have been following this story, but it's a stunner:
A woman who was sexually assaulted by her husband and then ordered by the court to pay alimony and legal fees to her ex -- once he is released from prison, may get relief from California lawmakers.
Crystal Harris, 39, told the judicial committee of the Calif. State Assembly Wednesday that the judgment, which was handed down in 2010, "amounted to making a rape victim write a check to her own rapist every month."
She described to lawmakers how her husband would choke her and sexually assault her while the couple's two children were upstairs. One of the attacks was caught on tape.
... Crystal Harris, who earns between $110,000 and $120,000 a year as a financial analyst, said she had been supporting her husband, who worked as a car salesman, ever since their first son was born in 2002.
Under normal circumstances, Crystal Harris would have been required to pay $3,000 a month in spousal support after the divorce, but because of the domestic violence she endured, the judge said he would lower that amount to $1,000.
"I call that the rape discount," Harris said. She was also ordered to pay her now ex-husband's $47,000 legal bill. Even if the new law passes in the legislature, Harris will still be on the hook for her husband's legal fees.
She tried appealing the judge's ruling last year, pointing out that her ex-husband will have no expenses while he's in jail.
The judge agreed, but pointed out that California law entitles Shawn Harris to alimony.
It's more typical to hear men complain about alimony, and when they do, they usually characterize it as unfair to men because more men pay alimony than women. But alimony laws in most states are gender neutral - the higher earning spouse has to pay alimony to the lower paying spouse regardless of whether the payer is male or female.
The original purpose of alimony was to compensate non-working spouses (almost always female) for the economic value of their contributions to the marriage. A secondary purpose was to recognize that spouses who stay home are less competitive in the job market - and thus less able to support themselves - than they would have been, had they focused on their careers.
Being a mostly stay at home wife and mother for nearly two decades while our children were growing up, that makes perfect sense to me.
The argument that alimony discriminates against men because men are disproportionately affected by it amounts to a disparate impact argument:
Adverse effect of a practice or standard that is neutral and non-discriminatory in its intention but, nonetheless, disproportionately affects individuals having a disability or belonging to a particular group based on their age, ethnicity, race, or sex.
Questions for the ages: if more men have traditionally paid alimony because women were more likely to stay home with the children and men were more likely to be the high earners even if the wife worked, is this really discrimination against men based on their sex?
Or is it simply the law's attempt to address problems better worked out between the parties?
Do you think alimony should be eliminated? Can you see any unintended adverse consequences?
Finally, what kind of jackwagon refers to this kind of ruling as a rape discount? Note: In the comments Dan pointed out that it was Ms. Harris herself who calls this a rape discount. Thanks so much for alerting me to my mistake!
Posted by Cassandra at March 30, 2012 05:52 AM
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If I parsed the excerpt correctly, it is Crystal herself calling the reduced rate of her alimony a 'rape discount' and I interpret this as sarcasm on her part.
I think the judge missed an excellent opportunity to set precedent and show sharp contrast between the intent of the law ('to compensate non-working spouses (almost always female) for the economic value of their contributions to the marriage.') and context of this particular case. In my estimation, the judge is the jackwagon for ruling an alimony of anything more than $0. The code allows him to reduce or eliminate the alimony - he chose to reduce instead of eliminate ("the criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award"). Apparently he doesn't consider rape to meet the his standard for elimination.
I don't think alimony should be eliminated but there needs to be more discretion involved. Unfortunately there is no litmus test for this - no table that a judge can cross-reference to get the correct number of years and $$ amount. That makes alimony a messy situation.
Posted by: Dan Irving at March 30, 2012 09:10 AM
Dan, you are exactly right - good catch! I started off to say something else and edited that sentence at the last minute without checking back with the article.
Sadly, I was trying to be less inflammatory and ended up just being incoherent.
Thanks again, and good points! I am not sure I favor anything but temporary (often called rehabilitative) alimony. If a marriage breaks up, the two parties should go their own way. That's one of the "costs" of dissolving the marriage - you don't get to walk and still enjoy one of the benefits of the relationship.
Posted by: Cassandra at March 30, 2012 09:16 AM
" Apparently he doesn't consider rape to meet the his standard for elimination."
Obviously a subscriber of the Whoopi Goldberg definition of *rape rape*.
Posted by: DL Sly at March 30, 2012 09:51 AM
You say that the argument "amounts to" a disparate impact argument, but you don't draw any conclusions from that. Are you suggesting that this form of argument is improper or fallacious, or just that this is a bad application of it?
I could see both positions: you could argue either that arguments of the form "even where there is no intentional discrimination, there is discrimination if results aren't exactly equal between groups" is a fallacy that fails to account for individual choices.
Alternatively, you could be arguing that the form may be valid in some cases, but not in this case. In marital disputes, unlike in racial hiring disputes (where we more commonly see disparate impact arguments), there is a more effective means of addressing imbalances -- direct negotiation between the two individuals who are affected. We don't have that option with larger groups, so you could field an argument that it was appropriate in those kinds of cases.
Which principle are you advocating?
Posted by: Grim at March 30, 2012 10:18 AM
You say that the argument "amounts to" a disparate impact argument, but you don't draw any conclusions from that.
I am tricksy that way :p
Are you suggesting that this form of argument is improper or fallacious, or just that this is a bad application of it?
I meant to suggest (gently) that merely showing that some class of people distinguished by race, class, sex or whatever is disparately impacted by a facially neutral policy does not establish that the policy is in fact discriminating against that class because of its defining characteristic.
It doesn't disprove that discrimination is taking place either, though.
To me, this is the classic question of descriptive vs. inferential statistics. If I look solely at the fact that most pro sports are now dominated by black players, I haven't proven that whites are being discriminated against because they are white. Other factors may produce those results (maybe proportionally more blacks are vying for those positions? Maybe blacks are more motivated? Maybe none of these things are true but when people are presented with two equally capable athletes, they assume the black guy or gal is more talented? Who knows?)
... you could argue either that arguments of the form "even where there is no intentional discrimination, there is discrimination if results aren't exactly equal between groups" is a fallacy that fails to account for individual choices.
I think that's a fair reading of my position on disparate impact arguments - or any argument that tries (usually without presenting actual evidence) to find a simple/single cause for complex situations with multiple influencing factors.
In marital disputes, unlike in racial hiring disputes (where we more commonly see disparate impact arguments), there is a more effective means of addressing imbalances -- direct negotiation between the two individuals who are affected. We don't have that option with larger groups, so you could field an argument that it was appropriate in those kinds of cases.
I think that in general, disparate impact is a lousy argument for discrimination (the inference). I think it's a good argument for disparate impact (the description) and that's all it really supports.
Posted by: Cassandra at March 30, 2012 11:02 AM
The real irony here (to me at least) is that feminists used disparate impact arguments to great advantage and - I think - wrongly.
So it is more than mildly amusing to see the MRA crowd using an argument they laughed to scorn when feminists were using it.
If the argument is inherently flawed (and I think it is), that's hypocritical. If the argument is not inherently flawed, then it's possible those horrid feminists had a point all along.
You know where I come down on that one :p
Posted by: Cassandra at March 30, 2012 11:05 AM
Do you think alimony should be eliminated?
Maybe. Definitely altered somehow. In many ways it does seem unfair, particularly the lower you go on the socio-economic scale. Mick Jagger paying alimony is one thing, but Mick the Milkman paying 1/3 of his income to his ex-wife, who simply decided she was unhappy with the marriage and wanted out while unwilling to undergo any mediation to try and patch things up(note, I'm talking about a very narrow range here), is something else entirely.
Can you see any unintended adverse consequences?
TO leaving it alone? Sure. If changed? Sure. The reason things got this way is because people attempt to cheat or game the system---with the help of lawyers all along the way. Would we be opening an old can of worms? Hai. Is it better than the current one? I really couldn't tell you. I don't know enough about it to chose.
Or is it simply the law's attempt to address problems better worked out between the parties?
Though I have libertarian tendencies myself I am always atounded by those who claim these kinds of things don't need a gov't backing it up----someone with coercive power---to make it work because of the whole action/consequences thing. Gov't involved is the least worst scenario and there is no best, imo.
if more men have traditionally paid alimony because women were more likely to stay home with the children and men were more likely to be the high earners even if the wife worked, is this really discrimination against men based on their sex?
I think you moved the goal posts with this. YOu went from a modern problem(maybe) to applying a century long trend to it, though the problem itself is less than 30 years old, by my recconing.
Contemporarily could it be true? With the Pill and all, leading to more women in the workforce and not staying home, could it be true that the laws, as written, are skewed wrongly? Possible? Yes. Are they? I don't know. I know it seems that way at times. Take for example the comedian Christopher Titus who found his wife cheating on him, and her lying all along the way. She's the guilty party, he supported her with his work, and she gets half according to CA law. AND, because she claimed he hit her, she possibly might have gotten more than half. (http://blogs.sfweekly.com/shookdown/2008/09/last_night_christopher_titus_a.php)
I cannot say definitively it is as bad as many claim it is. But it sure does seem like it sometimes.
All for going to the 10 years to launch your career or remarry route, warts and all, even though I've never been divorced, don't plan on ever doing it, and didn't live through one as a child. It simply strikes the 'this makes sense' chord in my head.
Posted by: ry at March 30, 2012 11:25 AM
A couple of side issues: I have to wonder why Ms Harris stayed with that thug for as long as she did. What kept her pinned to the "marriage?" Moreover, was there no family member or friend willing to step up and support an effort to leave?
I defer to Dan's superior knowledge of the details of the California law concerning alimony, but it occurs to me that we can have our laws made by us, if through the mechanism of our elected representatives, or we can have judge-made law--we can't have both. If we demand people-originated law, certainly we'll get absurd outcomes from some laws (as we will from judge-made law, much less from the conflicts among judge-made laws). However, in such cases, the proper response for the judge is to find the law unconstitutional (and this lay person can make 5th and 8th Amendment arguments for this alimony ruling being unconstitutional, as well as an Art III (?) argument about the divorce court's alimony ruling overruling the criminal court's sentence), or absent that, apply the law as it is written while pointing out to the legislature the absurdity of the outcome. Thus, were alimony required under the law, with no discretion for eliminating it, under our system of law (uncontaminated by how we actually practice it), alimony would have been required. With Dan's description, though, the judge plainly screwed up.
I agree with Cass, if I'm not putting too many words in her mouth: the disparate impact argument should be done away with altogether. The argument can be pushed to ridiculous extremes. There's a disparate impact in hiring against those disabled by their poorer preparation for the job/promotion in question. Maybe such things should be put to a lottery. That'll improve the quality of performance.
Those alleging discrimination are alleging a wrong-doing. Let them prove the discrimination on its face.
As to the question of alimony, I'm unsympathetic to the concept of alimony. What's it for? To help one of the parties survive after the divorce. But s/he is in that destitute condition, today, almost entirely because of decisions s/he made all along. Why should the other spouse have to pay for those decisions, just because their outcomes suddenly are inconvenient? 60-70 years after Edie Adams, there's no need, or excuse, for her situation to exist.
On the other hand, there can be a need for readjustment and job acquisition for the ex-spouse who has no current skills due, for instance, to a decision to be a stay at home spouse/parent. An alimony that supports survival until a job has been obtained (with documentation available on demand to demonstrate serious searches) would seem appropriate. We can argue the definition of "survival;" although my going in position would likely include a measure of (re)training time and expense.
better worked out between the parties
I have trouble with this. These are two people who've failed to get along well enough to stay in their marriage. How cooperative are they really going to be, now?
Posted by: E Hines at March 30, 2012 12:19 PM
She's the guilty party, he supported her with his work, and she gets half according to CA law. AND, because she claimed he hit her, she possibly might have gotten more than half.
Of course we're hearing one side of the story. Not that I have any reason to doubt him, but having worked in a family law practice for a short period of time, I learned that there are two sides to most stories and it's awfully hard to determine whether all the fault is on one side.
I will say this: in general I got the distinct impression that whichever party was screaming the loudest and airing all the dirty linen in public was the least credible.
Posted by: Cassandra at March 30, 2012 03:12 PM
A couple of side issues: I have to wonder why Ms Harris stayed with that thug for as long as she did. What kept her pinned to the "marriage?"
My guess is that she had some issues too. None of which excuses raping her.
This is a tough one for me because one of the first things I told my husband when we got married was that if he ever hit me, I would be gone so fast it would make his head spin.
And I would have. I could never have children in a house with someone who got violent. That said, domestic violence is not always simple. I was blessed b/c I grew up in a home where my Dad treated my mother with respect at all times and insisted that we do so as well. But I have known many women who grew up with violent fathers who hit the kids well beyond what is normal (spankings). If you come from a home like that, how do you even know what a healthy relationship looks like? To you, that is "normal", whether you like it or not.
Moreover, was there no family member or friend willing to step up and support an effort to leave?
When I was a young wife, I worked at the Navy Exchange. Several of the wives there were married to violent men. One left her husband and was struggling financially. Her husband stalked her and broke into her apartment and beat her several times. So even leaving didn't solve the problem. She couldn't afford to move and her family didn't care.
She was pregnant at the same time I was. He broke in and put her in the hospital. The police did nothing, even though he had violated several restraining orders.
A lot of women have trouble setting boundaries and insisting on respect in a relationship. I've seen women who won't stand up to their own children - they would never tolerate rudeness directed at someone outside the family but will let their own children treat them like doormats. Believe it or not, that's something I learned during my first year of marriage - my husband is a wonderful, considerate person and treats me like a princess.
But during our first year of marriage I was trying so hard to make things work (gosh, we were young) that I sometimes acted like a doormat. And if you act like a doormat, you can't be surprised when people wipe their feet on you.
I am not naturally very assertive - my nature is to be accommodating, slow to react or retaliate and slow to anger. It has only been experience that has taught me that sometimes I need to draw a line in the sand long before I feel threatened.
I suspect this is partly my generation and partly just being a Person of Estrogen :p
Posted by: Cassandra at March 30, 2012 03:33 PM
I've always lived in Texas, a community property state. Under CP law, half of what I earn belongs to my husband, not because he's staying home with the kids (he's not) or for any other reason relating to his individual habits or worth or the history of society's treatment of men, but because that's just the rule in this state. When you marry, you pool your incomes.
Not all Texas couples run their marital finances this way, at least until a judge gets involved. Each spouse may put his/her paycheck into a separate checking account with only one signatory. We never did it that way: we've had only joint accounts from the start.
Posted by: Texan99 at March 30, 2012 03:36 PM
Not to engage in story time, but when I was pregnant with our second son we lived in Florida. My neighbor across the street was a tall, slender woman who had let herself and her home go.
One day, I saw a photo of her before she was married. She was *gorgeous* - dressed like a model and looked so confident and joyful. It was hard to recognize my friend in that photo.
Her husband was rarely violent, but he was often verbally abusive - so much so that he had verbally beaten her down to the point where she honestly believed she was stupid, ugly, and worthless. Hopeless.
I don't think this happens overnight - I think it happens by inches. I was very young and naive and tried to help her regain some of that lost confidence - to help her build herself back up again.
One night she got dressed up for him - took great care with her appearance. He reacted viciously - to him, it was a threat. He pulled out his gun and told her if she ever fooled around on him or left him, he would track her down and kill her. This was beyond stupid - the poor woman never talked to other men. Her whole life was her husband and children.
Another woman in our neighborhood was divorced from a guy who had beaten her so badly she had to be hospitalized.
I came from a middle class background where such things were outside my sheltered experience. I don't think a lot of folks realize just how common this sort of thing really is.
I know I was surprised, and I don't think anyone who hasn't experienced that can fully understand it.
Posted by: Cassandra at March 30, 2012 03:44 PM
...trouble setting boundaries and insisting on respect.... usw
Yes, but. I've written about a particular friend. Raised in Chinese culture (at the risk of over-stereotyping), she was spring-loaded to respect authority and to respect her husband as her authority in particular. The abuse began gradually and slowly escalated; it took her some years to realize what was happening. Then she felt trapped in the marriage by the Bible (her church's interpretation). The thug was never physically abusive, so the police were only involved once: she got so frustrated one time that she hit him--whether it was a slap or a fist she was never clear, and I don't care. But he called the cops, and they arrested her for the crime of defending herself.
Her family didn't care about the abuse, and wouldn't lift a finger, except for one baby sister who squawked a lot, but wasn't equipped to do anything. His family knew what was going on and knew the thug was wrong, but they spent their energies berating my friend for being dumb enough to have married him in the first place.
Finally, she told me about it, and I told her to divorce him. That was the first time the thought even occurred to her. Then I needed to hold her hand through the process because of all that guilt over violating the Bible.
There's nothing in that accruing to me; that's just a long-winded way of saying that one friend stood up and stood with her. And if one friend can, other friends can elsewhere--like with Ms Harris. So my question stands: was there no...friend willing to step up and support...?
My wife tended to be over-accommodating, too, early on, and I had to work hard not to take advantage of that. Again, though, that's no big deal for me; that's just part of a man's duty. Perhaps facilitated by military training, but there are lots of folks on this board, and in the world, who don't have that training and who still are at pains to support, rather than walk on, their wives.
Posted by: E Hines at March 30, 2012 03:56 PM
Reading of the abuse in the comments I too asked myself,
"was there no...friend willing to step up and support...?"
Allow me to offer a hip hip huzzah to you Mr. Hines.
"Finally, she told me about it, and I told her to divorce him. That was the first time the thought even occurred to her. Then I needed to hold her hand through the process because of all that guilt over violating the Bible. "I'll now drag my antiquated knuckles back outside (time to feed the hosses) and bask in the knowing that there are still quite a few folk around with the grit to do the right thing rather than just watch while wringing their hands.
Posted by: bthun at March 30, 2012 04:26 PM
Oh yeah, and to you too M'Lady! trying to help that beaten down woman in Fla.
*The old geezer gets too flustered when hearing of people living with abusive people, and continuing to live with them with little to no aid from the law or even family!?... Too hard for the hun to grok.
Now on to something the simple hun can understand, feeding time!*
Posted by: bthun at March 30, 2012 04:43 PM
That doesn't surprise me, Eric. Another friend of mine (a close one) nearly had a nervous breakdown after her divorce. She blamed herself, and perhaps she had some part in what happened. But oddly, she assigned no blame to her husband even though he was the one who acted out. Even after she left him, she continued to love him.
Something Allen said a while back on another post caught my imagination: he said that he had loved two women deeply, and despite his being the same man he always has been, those two women saw him very differently.
I think there's a great deal of truth in this.
We are who we are, but other people can bring out parts of our personality because of who they are. We are who we are, but in a relationship we react to each other. We play, and are played upon, by our emotions.
When we love greatly, we become so vulnerable to hurt (and the defensiveness that can arise from it).
I've always thought this was one of the most beautiful love songs I've ever heard:
Nobody else could make me happy
No one could hurt me like you do
You were the only one that mattered
Then you were gone
Love had moved on
Left me alone
thinking of You...
There was never any other
You and I were created to be true
Isn't it Love that keeps us breathing?
Isn't it love we're sent here for?
Wasn't that love that we were feeling?
(That was something baby)
Deep in our souls...
Deeper than we know
Keeping me holding out for you
...I might as well have been dyin'
When we were apart
When you came back
I felt the beating of my heart
Yeah. Sappy, I know, but it brings tears to my eyes every time I hear it.
Posted by: Cassandra at March 30, 2012 06:38 PM
I suppose I am coming in late with this one but I blame alimony and California's draconian divorce laws as one factor in the decline of marriage.
A friend of mine with a talent for picking bad men ended up losing most of her net worth because she was dumb enough to let him put his name to her stock accounts during the short marriage.
And with our community property laws - together with our alimony laws....
Still (ties with your piece on women earning more) it is funny to hear of a case where the woman ended up supporting the man - know of several cases like that.
The alimony laws are 50 years behind reality.
Posted by: Bill Brandt at March 31, 2012 11:51 AM
I don't usually comment -- although I read here every day and am SO glad Cassandra is back. Had to step up on this one, because I *am* the woman in so many of your stories-- or at least, I'm her twin sister.
It's true-- everything happens in inches. First you put up with bad behavior because you both had rough childhoods, and you believe that issues can be worked through; and you believe deeply in the vows you took. Then you put up with porn, because hey, at least he isn't cheating! You put up with the first cheating because he cries and says he will change. You put up with the rest of the cheating because by that time he has you believing that it is indeed your fault that he does it. You put up with his refusal to work because *somebody* must take care of the children. You put up with the first blows because at least he takes out his frustrations on you and not your kids.
It all happens in such tiny degrees that you have trouble remembering that this isn't the way it's supposed to be; that none of this was in the holy vows you took as a bright-eyed 19-year old. It happens in such tiny measurements that when everything finally breaks, you can't understand how a person with your strengths became such a spineless being.
But if you're really lucky, you find yourself as a tired, worn-out 50 year old who just recently finished with paying child support. You have also just achieved the long-cherished dream of the college degree that you gave up to support your family so many years ago. Your grown kids don't want to talk to you because you broke up the "happy family" that you did your best to provide for them. You will continue to pay alimony for several more years.
And you are happier than you have ever been in your entire life.
Posted by: sorry I can't put my name at April 1, 2012 11:37 AM
Not sappy, Cass, truth in song. Sometimes truth is too hard (or too terrifying) to believe, so we believe something else, inventing that else if we need to hide far enough away from reality.
Alimony (and divorce and child support.) There's a kettle of worms. If you want a decision, go to court; if you want justice, go to church. In some of the cases I know of, I don't think there ever was anything like justice available, they turned it into war by other means (and the real victims were their children.)
Posted by: htom at April 1, 2012 11:52 AM
And you are happier than you have ever been in your entire life.
Bless you, Lady, and thank you so much for sharing that. It can't have been easy to live through, or to remember.
I know I've said this before, but one of the saddest things I've ever seen in my life was watching the marriage of another military wife fall apart. Both their parents' marriages were dysfunctional in the extreme. In a way it's a miracle that either of them even wanted to BE married, having witnessed what they saw growing up.
These were two basically decent, highly intelligent people. And they had NO idea what a healthy relationship looked like. They had no idea how to be good parents.
And they were both light years ahead of where they came from. Compared to their parents, it was amazing how far they had each come.
But it wasn't far enough in the end. I give my parents a lot of credit for the success of my own marriage - when I get stressed, some part of me always falls back on that unconscious template of marriage from my parents. So I know, for instance, that it is unacceptable to react in certain ways no matter how angry I might be at the moment (and though I have an extremely long fuse, when I finally do lose it, I really lose it).
I also have to credit my husband. He is very much the stereotypical guy in a lot of ways. There's a lot of male pride, and more than a touch of wanting always to be in charge. But when it counts, he puts our marriage first.
It everything depended on me, boy would we be in trouble :p
Posted by: Cassandra at April 1, 2012 01:42 PM