Legal Satire?: Doonesbury and "Transvaginal" Rape

So often, a subject or an issue may be characterized as "political", "religious", "social" or "economic", yet they are not mutually exclusive. Something that is characterized as political may very well (and often does) have economic, social and indeed legal implications. In a series of cartoons this week, Doonesbury's writer and artist Garry Trudeau satirizes the implications of Texas' sonogram law.

The law mandates that a physician who is to perform an abortion must prior to the abortion perform a sonogram and display the image of the foetus, make audible the heart auscultation of the foetus for the woman to hear and explain the results of each procedure. A 24 hour waiting period must take place between the sonogram and abortion procedure. See Texas Medical Providers Performing Abortion Services v. Lakey, 667 F.3d 570 (5th Cir. 2012).

The implications of such a procedure in early first term abortions are that doctors must perform the sonogram vaginally with the use of a ten-inch sonogram "wand".

In one strip, Trudeau depicts a scene where a woman seeking an abortion who does not want to undergo the sonogram procedure is told that it is mandated by law. The content of the strip is described as follows:

In the stirrups, she is telling a nurse that she doesn’t want a transvaginal exam. Doctor says “Sorry miss, you’re first trimester. The male Republicans who run Texas require that all abortion seekers be examined with a 10″ shaming wand.” She asks “Will it hurt?” Nurse says, “Well, it’s not comfortable, honey. But Texas feels you should have thought of that.” Doctor says, “By the authority invested in me by the GOP base, I thee rape."

The cartoon sketch is not only a political statement against those who have passed and advocate this law, it is also one that projects a view of legal normativity, specifically in relation to criminal law and the offense of rape. In Trudeau's view (amongst others) the procedure amounts to state-mandated rape. He asserts:

Texas’s HB-15 [bill] isn’t hard to explain: The bill says that in order for a woman to obtain a perfectly legal medical procedure, she is first compelled by law to endure a vaginal probe with a hard, plastic 10-inch wand. The World Health Organization defines rape as “physically forced or otherwise coerced penetration — even if slight — of the vulva or anus, using a penis, other body parts or an object.” You tell me the difference.

In justifying the use of the word rape, Trudeau further explained that "[c]oercion need not be physically violent to meet the threshold."

Proponents of the law will of course naturally object to this position arguing that a woman who wants to have an abortion is not being raped during these sonographic "procedures" as the woman seeking the abortion has a choice to consent to them.

True enough, there are times where patients must consent to certain invasive or otherwise uncomfortable preliminary procedures before undergoing a major or principal treatment or procedure. However, there is a difference when these invasive preliminary procedures are necessary. The patient has to make a choice to forego the main treatment or procedure or go through through the preliminary procedures and acquire the main procedure. Where the invasive procedure is not medically necessary and is invasive as the one prescribed under the impugned law, the circumstances are not the same. The choice is not nearly an acceptable one given the procedure that they must be forced to undergo is not medically necessary.

Songs of Freedom: Sun City and the Anti-Apartheid Movement

During the mid-1980s, artists in the music industry lent their voices, instruments, star power and time to the famine in Africa. Several songs were produced leading up to the epic Live Aid concert in July 1985. Much of this was waged toward generating money and sympathy for victims of the famine. However, in 1985 another powerful song was released - a song of protest against the inherent inequality (and crime) of apartheid in South Africa - Sun City.

Sun City is a resort located in the former bantustan of Bophuthatswana. Bantustans were constructed as "independent" or "autonomous" homelands" created by the South African state to which Black South Africans were forcibly relocated. No nation outside of South Africa recognized the independent nature of these bantustans. In these bantustans, Van Zandt saw strong parallels with the reservation system in the United States and the relegation of indigenous Americans to these reservations.

Sun City, as a resort sought to draw in tourists and vacationers - including music and performing artists. Van Zandt perceived performances by foreign artists from the Global North at Sun City as a legitimation of apartheid. As a way of attacking and throwing attention on the immorality of apartheid, and these bantustans, Van Zandt wrote Sun City. A song, album and video were produced bringing together rock, folk and rap artists - including Van Zandt, U2, Bob Dylan, Run DMC, Bruce Springsteen and many others top contemporart artists. The lyrics touch upon important themes relating to law and politics.

It focuses on the agency of international artists to boycott giving performances in South Africa during that era and specifically resorts such as Sun City. The chorus (full lyrics reproduced below) repeats the incantation: "I say, I, I, I, I ain't gonna play Sun City." While the tone of the lyrics and the manner in which they are sung are defiant, it is about defiance in furtherance of fundamental legal principles including equality. It's about the deprivation of equality through forced relocation and violence against those resisting apartheid - considered by the United Nations as a crime against humanity. The concept of equality is enshrined in numerous international treaties, including the International Covenant on Civil and Political Rights and the International Convention on the Elimination of all Forms of Racial Discrimination. The song was also in furtherance of the UN's cultural boycott of South Africa, which some prominent musical artists and cultural icons, such as Queen and Rod Stewart disobeyed.

The agency of artists is linked to the notion of freedom and responsibility of those who can deligitimize apartheid and the failure to act appropriately in light of the legal deprivations tied to apartheid. This is reflected in the following verse:

It's time to accept our responsibility
Freedom is a privilege nobody rides for free
Look around the world baby it can't be denied
Why are we always on the wrong side

Another verse powerfully ends with the following line: "We're stabbing our brothers and sisters in the back" delivered angrily by Bruce Springsteen and Bono (of U2) at different points in the song.

Tied to the notion of agency and the failure to engage in a manner to weaken and undermine the South African government, the song criticizes the Reagan administration's discredited policy of constructive engagement, which mirrored Margaret Thatcher's in England. The policy sought to avoid economic boycotts against South Africa in favour of incentives. In light of this policy, Reagan vetoed measures passed by the United States Congress with significant Republican support in the Senate rejecting President Reagan's stance. In 1986, Congress passed the Comprehensive Anti-Apartheid Act with a significant enough majority thus overriding Reagan's veto. The Act forbade any new United States trade and investment in South Africa. Similar legislation was passed in European jurisdictions as well as Japan.

Ultimately, Nelson Mandela and other anti-Apartheid leaders were released from South African detention facilities. Apartheid was formally dismantled and popular elections were held resulting in Mandela's historic election as President. A number of factors led to this result. Sun City was part of a phenomenon of endeavours to boycott and protest apartheid. However much or little Sun City played a role in its dismantling (in the United States - it purportedly received little radio airplay), songs and other forms of popular culture can play a critical role in drawing attention to a political cause against an ongoing international violation and in articulating a vision of law and justice.

Sun City

We're rockers and rappers united and strong
We're here to talk about South Africa we don't like what's going on
It's time for some justice it's time for the truth
We've realized there's only one thing we can do

I ain't gonna play Sun City

Relocation to phony homelands
Separation of families I can't understand
23 million can't vote because they're black
We're stabbing our brothers and sisters in the back

I ain't gonna play Sun City

Our government tells us we're doing all we can
Constructive Engagement is Ronald Reagan's plan
Meanwhile people are dying and giving up hope
This quiet diplomacy ain't nothing but a joke

I ain't gonna play Sun City

Boputhuswana is far away
But we know it's in South Africa no matter what they say
You can't buy me I don't care what you pay
Don't ask me Sun City because I ain't gonna play

I ain't gonna play Sun City

It's time to accept our responsibility
Freedom is a privilege nobody rides for free
Look around the world baby it can't be denied
Why are we always on the wrong side

I ain't gonna play Sun City

Relocation to phony homelands
Separation of families I can't understand
23 million can't vote because they're black
We're stabbing our brothers and sisters in the back

Lyrics courtesy of: http://www.hallandoates.de/Lyrics/Sun%20City.htm


Sources:

Michael C. Beaubien, "The Cultural Boycott of South Africa" (1982) 29 Africa Today 5.

John Harris, "The Sins of St Freddie" (14 January 2005).

Monsoon Resistance

Depictions of resistance to oppression in popular culture aren't reserved for just the grand revolutionary moments - e.g. wars of national liberation from a colonial power or a homegrown dictator. Resistance also takes place in the micro moments of everyday life. Films and television, amongst other mediums, are excellent tools to highlight such moments. They can happen in the most unlikely circumstances and can be interspersed with other narrative themes. Meera Nair's film Monsoon Wedding (MW) illustrates such moments.

MW tells the story of a Punjabi Hindu family in the days leading up to the wedding of Aditi Verma, the family's eldest daughter. One of the film's story arcs focuses on the issue of sexual and physical abuse perpetrated by a family elder, Tej. As the story unfolds, we learn that Tej had sexually abused one of his nieces, Ria, when she was growing up. Ria, who is now in her twenties is confronted by Tej's presence when he returns to New Delhi for Aditi's wedding. Ria and Tej are the only ones aware of what transpired years prior. Further complicating Ria's ability to confront Tej is his revered stature in the family. Ria's paternal uncle Lalit Verma (and Aditi's father) openly expresses his love and affection toward his brother-in-law Tej throughout the film. His gratitude stems from the fact that following the family's migration to Delhi following the partition of India, Tej helped to take care of the family following the trauma of the migration.

Against this backdrop, Ria suspects that Tej is possibly once again sexually abusing another child, Aliya, who is the prepubescent daughter of Lalit's close friend. Aliya is staying at the Verma house in the days leading to the wedding. During one of the pre-marriage celebrations (the Sangeet) Aliya makes statements to her and her friends suggesting that she has some knowledge of how adults kiss. This heightens Ria's suspicions as she sees Tej walking with Aliya toward his vehicle. She makes the decision to stop Tej from driving away with her. She frantically runs to where the vehicles are parked. As Tej is about to drive away with Aliya (all with the blessing of Aliya's parents who have no knowledge of what has been happening and what is about to happen), Ria stands in the way of Tej's vehicle. After Tej stops the SUV, Ria takes Aliya out of the car. Ria confronts Tej about his previous sexual abuse of her and now Aliya. She does so loudly and publicly in front of Aliya's father and Lalit, as well as Tej's wife (Lalit's sister and Ria's paternal aunt) who comes on to the scene. After Ria is slapped by her aunt, she leaves with her friends in their car.

The next morning, Lalit finds Ria and begs her to return home with him. He tells Ria that he believes her. However Lalit expresses that his "hands are tied" given what Tej has done for the family and the close bonds that existed over numerous decades. Ultimately, Lalit is able to persuade Ria to return home, as the wedding cannot proceed without her. In the remaining scenes leading to the wedding ceremony, there is a great deal of obvious tension as others in the house evince disgust with Tej through their facial expressions and body language. Finally, as the family is in a room seeking the blessings from deceased family elders, namely Ria's father (and Lalit's elder brother), Lalit stops Tej as he is about to go and receive guests. Lalit declares to Tej that he cannot have Tej remain at the house given what Tej has done to Ria. Tej and his wife (Lalit's sister) are asked to leave and never come back. 

Both Ria and Lalit's actions represent forms of resistance that have a normative quality to them. For Ria, it is the act of outing and confronting her abuser's oppression, not only against herself in the past, but with respect to what he was about to do to Aliya. It is an act of protection. It is also to break an implied code of silence. The difficulty of her task is even more accentuated by the fact that Tej was a highly respected member of the family and deference is normally given to such individuals. Lalit's confrontation with Tej also serves as an act of resistance in refusing to conform to the perceived custom of revering and respecting one's elders. An elder deserves no respect when they violate the physical and emotional integrity of another. However, his resistance is also more personal given that he must confront his memories and affection toward Tej and set those aside.

MW's resistance is therefore about impugning the implied codes of silence that work to the benefit of elders and persons in authority in a given social field. The themes raised in MW are not confined to family contexts in the Global South. In an interesting, although tragic way, the theme of abuse raised in MW harkens to other instances of abuse (sexual or otherwise) that we see today in the Global North as well. Abuses which take place in families here, but also those that take place institutionally. In particular, it raises issues about the duty to speak up and protect others who are being subjected to abuse. In recent days, the revelations surrounding the sexual abuse committed by an assistant football coach at Penn State and the failure of others to respond to this has unleashed an understandable sense of public outrage against those who knew. MW, amongst others illustrate the difficulties in confronting and calling attention to such oppression while presenting the "right" path.

Planned and Deliberate - Comedic Violence in the First Degree

Comedy wouldn't be what it is if those who engaged in it weren't a little outrageous. But are there no limits to how far one can go? Who decides what those limits are and when they apply? In some or perhaps many jurisdictions, the laws of the state may overtly prohibit the type of speech that comedians can engage in, especially when the comedic speech concerns those with power. In other ("relatively freer") jurisdictions, the restrictions may be those imposed by members of civil society and people within the entertainment industry, rather than by politicians. Norms are temporally and culturally contingent. Jokes that target individuals from a particular community may be acceptable at one point in time, but moving forward in time may be rejected and excoriated.

The recent heterosexist and homophobic comments made by comedian Tracy Morgan in Tennessee are examples of jokes that are viewed as unacceptable in many contemporary North American cultures (amongst others). At a show earlier this week, Morgan made jokes stating that homosexuality was a choice and if his son chose to be gay, he would take out his knife and stab him. Kids who were being bullied for acting gay, he admonished, should stop whining and essentially "man up". The outpouring of condemnation has come from a variety of sources, including the Human Rights Campaign and Morgan's own 30 Rock co-star Tina Fey.

All of this criticism and denunciation is well-founded. Morgan, like other comedians do not operate in a social and cultural vacuum. They are aware of the mistreatment that many LGBTQ youth face, even if he chooses to minimize it. Furthermore, we have to recall that this likely wasn't a spontaneous discriminatory utterance - he wasn't for example responding to a heckler (although it would hardly be justified even if that was the case and it wasn't justified when Michael Richards resorted to racial epithets). If it was part of a stand-up routine, it might be fair to say that this was planned and deliberate "discrimination in the first degree." While portions of a comedian's act may be improvised (e.g. when a comedian engages in some impromptu colloquy with an audience member and usually at the latter's expense), there are many other portions that are clearly worked out in advance and form part of the overall sketch. It is considered and deliberated upon - in other words some time is spent contemplating what goes into the sketch and what stays out - pros and cons are weighed as to what will have the greatest impact.

Without a doubt, had Tracy Morgan made these jokes as late as the early 1990s, he might not have faced much hostility of any sort. Back in those days, a number of comedians made jokes about gay people, including Eddie Murphy in his film "Delirious" from the early 1980s. You could hardly imagine Mr. Murphy doing that kind of sketch today. Times have changed, norms have changed - for the better. When comedians like Tracy Morgan violate these norms, the result may be scorn and denunciation with a potential for loss of job opportunities. Although, there may be limits to that too - after all, Mel Gibson is still acting in or directing films.

Sources:

http://www.truthwinsout.org/news/2011/06/16926/

http://nymag.com/daily/entertainment/2011/06/morgan.html?imw=Y&f=most-viewed-24h5

Sexual Assault and the City

Sexual assault is one of the most serious crimes known to civil societies. It impacts upon those subjected to sexual assault in a most intimate fashion. It isn't limited to instances of rape. It can involve the unwanted and offensive touching by one person or more of another without consent. In most cases, these assaults are perpetrated by men against women. Yet, one can easily imagine circumstances where the opposite may also be the case. This is eminently possible when we consider that under a broad understanding of sexual assault, men can also be the object of sexual gratification of another. Given the predominant paradigm of male on female sexual assault, forms of popular culture do not treat the converse as worthy of serious discussion.

Where it is covered it may be constructed as legitimate conduct. During an episode of the once popular television series Sex and the City, the character Samantha Jones learns of a masseur who provides more than skilled massages but cunnilingus to select female patrons. Expected to be treated to such extra services, she schedules an appointment with this masseur. As the allotted hour winds its way closer and closer to its end, Samantha seeks to accelerate the process of her obtaining sexual gratification by grabbing the masseur's genitals. This is naturally intended to signal the masseur as to her sexual intentions. The scene transitions to the manager or owner of the spa berating Samantha for sexually touching one of her male employees. Clearly, the masseur takes exception to what Samantha does. Samantha responds by informing the manager/owner that the masseur has a history of satisfying female customers in a manner that exceeds the scope of his duties as a masseur. We learn further that the masseur's employment is terminated. Samantha's action goes unpunished, save for being banished from the spa and being dressed down by other women who were serviced by the terminated masseur.

What lesson(s) is to be learned from this? Clearly, where a man has a sexual history, this means that he must be expected to comply when advanced upon by another a woman to whom he has not yet given consent. Let us imagine Samantha is Samuel and the masseur is a masseuse who is known to provide fellatio to select clients. Would there be any doubt that if Samuel touched the genital area of the masseuse, this would be construed not only as a sexual assault on her person, and interference with her bodily integrity, but also an act worthy of arrest and prosecution? We would have little doubt that Samuel would deserve such treatment. Surely the masseuse would have been acting inappropriately by going beyond the scope of her employment with other clients, but it wouldn't justify her being sexually molested by Samuel. Sex and the City's treatment does just this when the male is the "victim" and one of its lead characters is a "sex offender". However, the victim's status as a victim is impugned and tainted because of his sexual history with other clients, the very type of attack that feminist scholars and activists rightfully criticized the legal system for allowing to be done to women.