A New Jersey appeals court is criticizing a judge who ruled that a 16-year-old boy accused of rape deserved leniency because of his “good family” and extracurricular activities. The judge also made inaccurate assumptions about where rape usually occurs, saying that it traditionally happens in places like a “shed” or “shack.”
In June, an appeals court called out Judge James Troiano of Superior Court for making an independent assessment of the boy’s culpability, according “great weight” to the idea that the boy may have believed it was consensual despite the alleged victim’s level of intoxication, and “decid[ing] the case for himself” rather than focusing on the prosecutor’s argument.
The suspect, identified in court documents as G.M.C., used the word “rape” to describe what happened in a text message to friends after the incident, according to the appeals court ruling.
The incident in question happened when the alleged victim, Mary, and G.M.C. went to the same party. Mary was visibly drunk and her speech was slurred and she stumbled as she walked. They went to a darkened area of the basement, and while the victim was laying on a sofa, a group of boys “sprayed Febreze on her bottom and slapped it with such force that the following day she had hand marks on her buttocks,” the ruling said.
G.M.C. then penetrated Mary and filmed the act on his phone, showing her “bare torso” and “head hanging down.” He later shared the video clip with friends along with a text message that read, “When your first time having sex was rape.”
In addition to being charged with sexual assault, he also faces multiple invasion of privacy charges, one for filming the act and one for sharing the video.
Troiano denied a waiver that would have allowed G.M.C. to be tried as an adult, and made several comments that showed lopsided sympathy for him, including “He is clearly a candidate for not just college but probably for a good college.” He also reportedly expressed concern that the prosecutor did not indicate in her memorandum that she told Mary or her mother the “devastating effects” that it would have on G.M.C.’s life to try him as an adult.
The judge also made outlandish comments about what he personally considered to be rape.
He described a “traditional case of rape” as a situation involving “two or more generally males involved, either at gunpoint or weapon, clearly manhandling a person into . . . an area where . . . there was nobody around, sometimes in an abandon[ed] house, sometimes in an abandon[ed] shed, shack, and just simply taking advantage of the person as well as beating the person, threatening the person.”
There are several rape myths included in Troiano’s reasoning.
First, he embraced the idea that a victim must always be threatened by a weapon to have been sexually assaulted, as opposed to a coercion under an implied threat of violence or, as is alleged in this case, a level of intoxication that doesn’t allow the victim the ability to consent. Mary reportedly did not remember what happened to her the next day but feared that something sexual happened based on torn clothing and a bruised body.
In addition to wielding a weapon, Troiano also appeared to suggest that the person must be beaten to sufficiently be considered as not having provided consent to sexual activity. A pervasive rape myth is that victims must fight back to truly be victims, and that, in response to their resistance, they are often beaten. He also gave the example of a place that is abandoned or remote as the most frequent place people are raped, which showed he likely did not believe rape happens in social situations where there are people nearby.
The scenario of not just one, but two men or boys conspiring to sexually assault someone showed the judge thought of rape as a well-planned act that people — presumably not from “good families” — do to strangers and not to people they know and socialize with.
As Lynn Hecht Schafran, senior vice president and legal director at Legal Momentum, explained, this isn’t what most rapes look like:
In the stereotyped narrative about ‘real rape’ that has infiltrated the public mind, rape is an infrequent crime in which a degenerate, sex-starved, knife-wielding stranger jumps from the bushes to attack a blameless, nubile young woman. After the rape, the woman reports immediately to the police and is then admitted to the hospital for treatment of her savage physical injuries, sustained while resisting to the utmost. But in reality, the vast majority of rapes are nothing like the stereotype. The overwhelming statistical profile of rape documents a commonplace crime committed by a man with an active consensual sex life on a woman he knows, often in her own home. He uses no weapon, but she offers little, if any, physical resistance because she is terrified into passivity, fears serious physical injury or death, or was taken totally by surprise because she did not fear a ‘friend.’
It’s common for sexual assault survivors to have poor experiences when they turn to the legal system for help, especially since police and judges can be susceptible to rape myths. A 2017 qualitative study of sexual assault survivors’ experiences after their involvement in the legal system found that many survivors who had interactions with the police and legal system went through secondary victimization and that few survivors had positive experiences. Another 2017 paper concluded that police often “invoke traditional rape myths in documenting their investigations” and blame victims for problems with police investigations after the assault.