That Wasn’t Slut Shaming, and We Need to Talk About This Double Standard for Female Victims

James Patrick Whalen, a Grand Forks teacher found guilty of carrying on a sexual relationship with a teenage student, was sentenced recently.

Something his attorney said during sentencing has people outraged.

“I agree … that he is the adult and she is incapable of consent by statute, and he is at fault for that,” attorney Robert Hoy told Judge John Thelen. “The law does not say that she is incapable of facilitating it or encouraging it or asking for it.”

Asking for it?

Yikes. Perhaps not the best way to word that argument.

Hoy is now being accused of “slut shaming” and worse. “Using the phrase ‘asking for it’ is a startling defense that sets back where we have come as a civilization,” the Grand Forks Herald editorializes today. “No victim in a sexual assault — and that is exactly what this is, according to the law — is ever ‘asking for it.'”

This situation is desperately in need of some illumination. There are some facts here being obscured by a whole lot of knee-jerk outrage.

Hoy really was doing his job. The North Dakota Century Code makes Hoy’s points relevant to sentencing. That’s key. Hoy did not make this argument in defense of his client’s innocence, because it wouldn’t have been relevant as Hoy himself admits. The relationship between Whalen and his student was illegal.

But Hoy’s argument about the victim is explicitly allowed during sentencing.

Section 12.1-32-04 of the North Dakota Century Code identifies “factors” which “shall be accorded weight in making” sentencing decisions.

One of those factors is whether the defendant “acted under strong provocation.”

[mks_pullquote align=”right” width=”300″ size=”24″ bg_color=”#ffffff” txt_color=”#000000″]If Hoy deserves scorn and derision for suggesting, during sentencing, that his client’s victim was a facilitator in the crime then so does every single person who has ever made light of a female teacher victimizing a male student.[/mks_pullquote]

Another is whether the “victim of the defendant’s conduct induced or facilitated its commission.”

At the point of sentencing a defense attorney like Hoy is no longer advocating for the accused. The accused is now guilty. Yet still, defense counsel must be a vigorous proponent of their client’s interests. North Dakota law spells out the factors which impact sentencing, and among them is the question of whether or not the person found guilty was provoked or induced into committing their crime.

That was the point Hoy was making. Perhaps we could argue that his comments were a bit clumsy, and worded in a regrettable way, but North Dakota law requires that the facts Hoy was pointing to be considered in sentencing. He would have been remiss had he not pointed them out.

Defense attorneys like Hoy should have broad latitude to do their jobs. I realize that’s not fashionable thinking these days. North Dakota voters just put in our state constitution a set of “victims rights” requirements called Marsy’s Law which, among other things, restricts the ability of those accused of crime to confront their accusers. On college campuses across the nation kangaroo courts have been convened, at the behest of the federal government, to adjudicate serious crimes like sexual assault in ways that do not at all protect the rights of the accused.

But, public opinion be damned, what Hoy did was his job.

If I ever find myself accused of a crime, I hope to have an advocate like Hoy on my side.

And by the way, can we acknowledge the resounding double standard on display here? Hoy is being pilloried because he pointed out, factually, that Whalen’s female victim was a willing participant in the most definitely illegal and inappropriate relationship. And yet every time news breaks of a good looking female teacher having sex with a male student we’re all treated to a round wink-wink-nod-nod appreciation from those apparently titillated by the situation.

We’re supposed to feel that male students are lucky to get to have sex with a teacher. We’re supposed to believe that it’s a dream come true for these male students.

This double standard isn’t just visible in the public’s reaction to these cases. It’s visible in the outcomes from the criminal justice system.

Susan Duursma, a former middle school teacher in Bismarck, was found guilty of having sex with one of her 15 year-old students. Her sentence? She got 60 days in jail for felony child abuse after initially facing three counts of corrupting a minor and doesn’t have to register as a sex offender.

Sara Joy Wurgler, a “paraprofessional” in the Fargo school system, pleaded guilty to showing nude pictures of herself to a 16 year old student. She got 30 days in jail on a misdemeanor charge and she also doesn’t have to register as a sex offender.

Mandan school teacher Amanda Kolosky pleaded guilty to having sex with a 17 year old student. Her sentence? A one year suspended sentence, two years of probation, and she doesn’t have to register as a sex offender.

Now contrast those cases with how a male teacher is treated when accused of sexual misconduct with a student.

Fargo teacher Aaron Knodel was charged with 5 felony counts, and potentially 35 years in prison, for allegedly having sexual contact with a 17 year old student in 2009. He was acquitted of the charges. He almost certainly would have had to register as a sex offender once released from prison.

Whalen, meanwhile, got a four year prison sentence after having a sexual relationship with a 16 year old student, with two years suspended. He faced as many as 25 years in prison. He will have to register as a sex offender.

It seems this double standard is more worthy of our scorn than Hoy’s vigorous defense of his client.