On reading “Know My Name” and studying the law of rape in the same week
For years, writer and artist Chanel Miller was known to the world only as “Emily Doe.” She was the faceless victim of Brock Turner, the Stanford prepstep who in 2015 was convicted of three counts of felony sexual assault, yet ended up serving just three months in jail due to what the judge perceived as Turner’s “potential” (apparently he was really good at swimming or some such bullshit).
In September 2019, just a few months after Turner’s release, Miller abandoned her anonymity via the publication of her memoir, Know My Name, which chronicles Miller’s personal and legal battles stemming from Turner’s assault. The book achieved immediate bestseller status, and has already garnered numerous accolades and awards in the few months since its publication.
Despite my interest in Miller’s story since she was known as Emily Doe, it was only recently that I picked up her memoir. A few weeks ago, my mother-in-law — an English teacher with her finger on the literary pulse — sent me a copy of the book as a quarantine read. The book, with its cool cerulean cover and flecks of gold meant to represent kintsugi, intrigued me — as did the smiling author photo on the back flap of the book jacket. The book has the energy of an artifact. I set aside the pile of reading on my nightstand and began her journey.
Coincidentally, I started Miller’s story just as my Criminal Law course was picking up its penultimate unit for the semester: Rape. The word looked so stark on the syllabus — it’s not a term you often use in a classroom setting. I thought back to my prior education, trying to remember when the concept had even been addressed. I recalled a high school health class lesson, and snickers emanating from the back of the room. In college I studied literature, and in the works of Shakespeare, the Greeks and the like, “rape” is used with a bludgeoning frequency, yet you are taught to isolate and compartmentalize such ideas as “poetic” terms and phrasing (have you guys re-read The Rape of Lucretia lately?).
My Criminal Law professor seemed keenly aware that many people had similar levels of academic exposure and began that day’s Zoom lecture with a flustered, “I know this is a difficult topic…” shpiel. Our textbook had introduced the concept straightforwardly enough: it described how rape, as a criminal offense, actually began as a principle of property law concerning fathers and husbands whose property (their daughters and wives) were violated when a rape occurred. It wasn’t until many years later that female personhood became a sufficient basis on which to sold someone accountable for rape.
Reading this, I felt myself bristle, readied. I looked across the 40 virtual heads of my classmates, bobbing up and down in solemn agreement with the professor. Which one of you is going to give me an opportunity to pounce? I wondered. Which one of you will allow me to release a huff of female rage in the form of a snarky rebuttal? I practically looked forward to it. This would be my training ground: where I could practice the arguments that would hopefully, someday, avenge survivors, and avenge some part of myself.
Meanwhile, in Miller’s book, a bleaker reality quickly became apparent. The first section of the text chronicles Miller’s day leading up to her assault: tacos with friends, hanging out with her family at home, and then accompanying her younger sister to a fraternity party on Stanford’s campus. Then, the book sharply cuts out and Miller wakes up in a hospital, where she is informed a “possible” sexual assault has taken place. From these first moments of consciousness, it’s easy to see that the system has already failed Miller. She waddles to the bathroom and there realizes she is no longer wearing underwear. Without any grasp of how she got to the hospital, Miller is invasively examined, questioned by a detective, and asked if she wishes to press charges. Thus, her legal journey begins in a fog.
Miller is later assigned a lawyer (a District Attorney) and a legal advocate. These figures, the DA and the advocate, were frequent characters throughout the book, but one did not get the feeling they were very present figures in her life, nor conduits to any kind of meaningful recovery beyond what a guilty verdict means on a piece of paper. How naive was to imagine the book would contain descriptions of impassioned legal arguments and references to law? Instead, and perhaps unsurprisingly, it was the victim that ended up doing the most of her real advocating.
The first case we read, Brown v. State, disturbed me greatly. A 16 year old farm girl was walking in a field when the son of neighboring farmers, 20, attacked her and began to rape her. The girl screamed at first, telling him to stop. He continued. Finished. The man was held innocent of the crime of rape because, in the eyes of the judge, any truly pure and fair maiden would have resisted for the entirety of the act. Indeed, early rape law, supposedly the foundation of recognizing some personhood, was as flawed as to base the crime of rape off of the level of resistance exhibited by its victim.
Later developments, fortunately, felt “reasonable” resistance to be enough. The cases we read were gag-inducing, filled with drug deals gone wrong, the leering eyes of creepy step-brothers, and quotes as predictable as “I didn’t pay for dinner for nothing.”
Our textbook asked us to question whether “no always really means no.”
Our textbook asked us to question whether “no always really means no.” “What if the woman says ‘no’ and then later exhibits willingness to have sex? Should there be a per se rule that after an explicit ‘no’ sex is a crime?” Though the textbook author’s intent was surely to provoke discussion, the class’s handling of these issues was the definition of dispassionate. I imagine everyone had their own reasons for refraining from the conversation (myself included): “what if I say the wrong thing and ignite the social justice warriors? What if I say the wrong thing and ignite the Federalist Society members? What if this is the absolute most painful concept I’ve ever attempted to dissect in an academic setting and I would like to melt into the floor please?
Sexual assault is not necessarily unique as a legal doctrine with its roots in sexist and racist principles. Yet, in many units of my Criminal Law course, the trajectory from “questionable, archaic” to “modern, refined” was easy to follow. Typically, developments in creating more equitable laws culminated in codification in the Model Penal Code. As the name suggests, the Model Penal Code (“MPC”) is meant to be a building block for criminal laws adopted across the country. For laws relating to murder, i.e. the MPC is the defacto definition of the law. The MPC definition of criminal sexual assault departs drastically from this pattern, using gendered language, i.e. only a “man” can sexually assault a “woman.” The statute further specifies that that woman cannot be that man’s wife. The MPC proved to be just another example of the many ways in which the struggle against a culture of sexual assault is rooted in peeling back layers upon layers of insidious thinking.
Examining critiques of Miller’s story, both professional and dredged up from the depths of GoodReads, the most frequent issue readers take with the book is its length. The internet is peppered with well-meaning reviews that veer into eyebrow-raising territory with complaints about book’s bloated midsection. Why did she have to drag it out like that, they ask? Nevermind the fact that Miller’s trial dragged out over the course of years, demanding her full time and attention at the snap of the court’s fingers if she were to have any hope of her case being taken seriously.
It’s Miller’s very ability to fulfill these whims that make her, as she has been dubbed previously, “the perfect victim.” Miller’s perfect victimhood inevitably balances her narrative on a strained edge. On the one hand, she must play her role if she is to be validated in the eyes of the legal system. On the other hand, it’s hard to ignore the sources of privilege that allow Miller to occupy this status. To point out Miller’s privilege isn’t to cheapen Miller’s story or attempt to invalidate the trauma and power of her unique experience in any way. I only point to it because, each time I read about Miller receiving a tender hug from a family member or receiving a home-cooked meal or a place to sleep — I couldn’t help but think of the many individuals without such basic comforts.
There’s no singular face when it comes to victims of sexual assault. It is insidious in our society, worming its way in and ruining lives as assailants and abusers see fit. But there is a lot to be gleaned from the fact that Miller, despite her ideal victim status, still received so little justice. One can practically hear the cries of the women whose “poorly pleaded” claims left them twisting in the wind.
At school, it was clear how the marginalization of victims of sexual assault is insidiously forced upon students of the law. My professor, a day or two ahead of the syllabus, emailed us to announce that the remainder of the sexual assault unit was going to be cut. There was resignation in his tone: he was clearly questioning whether he was simply giving in, or whether it was his duty to press forward and insist we grasp the minute details of this vastly complicated and significant issue within the mental and spatial confines of Zoom Law School. I note this resignation to redeem the man in some form, yet his choice feels utterly convenient in light of the subject matter. It was a maneuver reminiscent of Miller’s lawyers: doing what was necessary, keeping a low profile, and leaving the real work — of retribution, of healing — in the hands of the survivor.
Perhaps the professor was right in some ways; perhaps we couldn’t have had a fruitful conversation. No legal language is available that can encapsulate the emotional gravity of the issue. At least, there are not the words available to define the simmered down truths of rape and sexual assault into but a niche of the legal system. These are concepts so deeply rooted in the subjugation of women, in an understanding of the human psychology of power and sex. The lines of thinking do not run straight enough to be tracked into current legal conventions. There is much else I must read and learn from feminist legal scholars who I am sure have addressed this topic with greater grace and refinement of thought. Still, after putting down Miller’s book and leaving pages of unread cases behind in my casebook, I was overcome with the feeling that this is an area of the law in desperate need of a new vision. Structural change will take our collective efforts and imagination — not the efforts of singular women, fed to the system in the form of “perfect victims” in exchange for a whiff of progress.