"Constitutional Terrorism": How the U.S. Constitution Enables Crimes Against Women

The law says “equal protection,” but Wendy Murphy argues the U.S. legal system still keeps women on the outside of that promise and the proof is in how gender-based violence gets handled. From rape statutes that require force to charging practices that slow-walk sexual assault complaints, we trace how constitutional doctrine, policing discretion, and courtroom culture combine to under-protect women and girls and to re-victimize survivors who try to seek justice. 

Wendy, an attorney and former child abuse and sex crimes prosecutor, breaks down the difference between equity and equality in plain language: equality is the constitutional floor that controls how government must treat people, while equity is impossible to achieve on top of a broken baseline. She explains how the legacy of coverture and the Supreme Court’s approach after Reed v. Reed produced what she calls “unequal equal rights,” leaving room for laws to be enforced differently and worse when the victim is female. We also dig into stark examples: rape laws that treat bodily autonomy as less protected than property, hate crime statutes that often exclude sex, and evidence rules and courtroom orders that burden victims in ways other crime victims never face. 

From there we shift to what can actually change. Wendy walks us through the Equal Rights Amendment’s long fight, why litigation still matters, and why education is a missing catalyst for constitutional reform. We also talk about Title IX enforcement in schools and why treating sex-based civil rights as second-class shapes girls’ expectations of safety for life. If you care about criminal justice reform, victims’ rights, constitutional law, or ending violence against women, this conversation gives you a clearer map of the problem and a strategy for action. 

Check out Wendy's related article, "Unequal Protection of the Laws for Women is Constitutional
Terrorism, So How Come Nobody Knows About It?": https://digitalcommons.onu.edu/cgi/viewcontent.cgi?article=1357&context=onu_law_review

Transcript

Why The System Fails Women

SPEAKER_01 0:00

The intersection of constitutional law and the unequal treatment of women in the criminal justice system involves systemic gender biases, sentencing disparities, and the failure of existing laws to account for and address the myriad of challenges and issues inherent in the Constitution and exacerbated by lawmakers or law enforcers. This unequal treatment has led to systemic abuse and re-victimization and has acted as a threat to holding offenders accountable and to women's safety. Our guest today, Wendy Murphy, is an attorney and former child abuse and sex crimes prosecutor who currently specializes in women's constitutional and civil rights, criminal justice policy, and sexual and domestic violence. Ms. Murphy is also an impact litigator in state and federal courts on women's rights, victims' rights, the equal rights amendment, and the ongoing struggle for women's equality, as well as an adjunct law professor of sexual violence law and the director of the Women's and Children's Advocacy Project under the Center for Law and Social Responsibility at New England Law, Boston. Wendy, welcome to the show.

SPEAKER_00 1:17

I'm delighted to be here. Thanks for having me, Maria.

Equity Versus Equality In Law

SPEAKER_01 1:20

It's great to be with you and to talk about something that I have wanted to talk about for so long. I'm really excited about this conversation about understanding the Constitution and what it means to women and how it doesn't really help women in many ways. And hopefully you can clarify a lot of questions for us. So before we get into the topic of constitutional law and how it impacts violence against women, there are a few things that probably we need some definitions for and maybe some clarification on. So let's get definitions for terms like equity and equality and what equality means when it comes to protecting or fighting for women's rights.

SPEAKER_00 2:02

Yeah, this issue comes up a lot when I talk about the importance of legal equality. A certain number of people will respond by saying but equity is more important. For most people, I think the word equity means something more along the lines of fairness, where equality might be formalistic, but it doesn't get you where you need to go. And another group of people will say, well, equity is more important because you don't want women to have exactly the same positions and spaces as men. In other words, equity gets us further toward equality, but without requiring the law to treat men and women exactly the same in all circumstances. Both of those things I think are interesting and important perspectives, but ultimately they're missing the real point, which is that equality is about law and equity is about something else. So for me, as an attorney, as an activist, as an impact litigator, and as someone who cares fundamentally about the law being equal in terms of how it treats people at the baseline, you got to establish equality first. And then you can talk about what equity looks like. But if you talk about equity before equality, you're it's like pushing crumbs around on a broken plate. They're gonna fall through the crack. The meaning of equity loses some of its force because the plate, which is where the constitutional baseline rests, is broken. You don't ever want to be compelled to define what equity means on a broken plate. You don't want to define any laws, really, or fight for any laws or changes in law while the plate is broken. Because again, just using the crack metaphor, it's never going to function the way you think it will, because the constitution from which equality is derived as a fundamental legal matter, that is where the determination is made as to whether the laws you do fight for that aren't at the constitutional level can be enforced equally, applied equally, construed by the courts in a manner that's equal. If you start off with a constitution that permits unequal enforcement, unequal treatment, unequal application and construction of laws, then you have, in a sense, failed to fix the one thing that actually might give you meaningful equity, should that be your focus. So I say this to people all the time, especially when they say, well, if you create equality between men and women, you're going to deprive women of the things they need that are unique to femaleness. And that's not true because the law with regard to legal equality doesn't mean sameness. It doesn't mean men and women are the same. It doesn't mean we get treated the same for all purposes. It just means that when it comes to the enforcement and application of law, and all laws, from getting a dog license to freedom of speech, laws against slavery, and for our purposes most importantly, laws against rape and domestic abuse and so forth, the bottom line is equal treatment under the laws applies to everything. So if you want to be protected from rape or domestic violence, and you don't have equal protection of those laws, you will be beaten, raped, and killed at higher rates because you're considered unworthy of equal protection. And that is that's the status of where women lie today in a constitutional sense. So you can talk about well, what might happen if the law treats men and women the same? And there could be good arguments about why you might be concerned that sameness is a problem, but that would be a denial of what legal reality is. For example, in the context of race and other categories where equality under the law is required at a higher level than what women enjoy, no one says black people and white people have to be treated exactly the same for all purposes because there are times, for example, we have racial preferences in hiring sometimes, certain ideas about whether a black person suffers a unique form of harm, those are recognized in the law and they don't get erased just because black is equal to white under the law. The bottom line is, and what I'm really trying to emphasize here is legal equality doesn't mean sameness. Legal equality means the government cannot legally treat you differently and worse than someone else. And women categorically have always been in that second-class space where because we don't have basic legal equality, we can be treated differently and worse under all laws, because that's what the guarantee of equality does at a constitutional level. There's no kind of abstract right to equal protection of the laws. It has to attach to something. So when you say, well, my equal protection rights are at stake, you're not saying very much until the next question is asked, which is, well, equal protection of what? You can't just say equal protection generically because that's a modifier. It's not a substantive law unto itself. It's a thing that applies to everything else. So unless you think women deserve to be treated unequally under all laws at all times by all government officials, police, prosecutors, state, and federal, and all government officials in between, literally all of what we think and know about what the government is, both as the lawmaker but also as the law enforcer. And courts are the government too. Judges are the government too. So if you want women to be treated differently and worse by all government officials at all times, because you're worried about what it might mean to have women come closer to the sameness that the law might reflect if men and women were treated more equally, then you know you're contributing to women's suffering. It's really that simple.

Women And Unequal Equal Protection

SPEAKER_01 7:49

So I have many questions based on all of that, which is a very robust explanation of equity, equality, and very much within the confines of talking about the Constitution and laws. So help me understand and like maybe boil this down a little bit further, and maybe we can use a few specific examples to illustrate and help people understand. I think what I heard you say is that women are not treated equally under the law. Is that correct?

SPEAKER_00 8:18

Well, the Constitution, which grants all persons equal protection of the laws, that's the language from the 14th Amendment, that has never applied equally to women. And I'll give you a little bit more history because it'll clarify both the question you just asked and maybe the question you're about to ask. When the Equal Protection Clause was adopted as part of the 14th Amendment in 1868 and it said persons shall have equal protection of the laws, women were initially delighted because they thought, well, we're persons, right? Of course we have equal protection rights. Well, the Supreme Court made clear very quickly that women did not have equal protection rights because they weren't persons. And that was just a direct result of having delivered the laws from England to us when we were first a country. And the body of law that England gave to us included this concept of coverture. It includes the word cover in there because it literally means women are covered by their husbands and their fathers. They don't need rights of their own. They're not persons. They're owned by essentially the men in their lives. And that was the reason the Supreme Court, after 1868, when women tried to assert equal protection rights because they were betrayed being treated unequally, the Supreme Court just didn't even let them make the claims. They just denied the idea of women as persons. Women didn't become persons in this country until 1971, under the Equal Protection Clause, that is. We did under certain state laws, but I'm talking about the federal constitution, of course. So we became persons, according to the United States Supreme Court in Reed versus Reed in 1971, and the Supreme Court said in that case, fine, we'll let women be persons under the Equal Protection Clause, but their equal protection rights are going to be unequally applied and enforced. So basically, we the Supreme Court gave us unequal, equal rights. I know, is your head spinning yet? Yeah. In 1971, and that's where we remain today. It's why we've been fighting for the Equal Rights Amendment. It would close that gap and say, you can't give a person unequal, equal rights. That just doesn't even make sense. And the court constructed the whole concept of unequal enforcement of equal rights. They invented it out of whole cloth because that's not what the Constitution says. There's no question the Constitution doesn't explicitly allow this unequal treatment of women, but it is where women have always been in this country. We started as non-persons with no rights, went to second-class persons with lesser rights than other people, and that's where we remain today.

SPEAKER_01 10:52

Give us an example of being treated unequal.

Rape Law And Hate Crimes Gaps

SPEAKER_00 10:58

Yeah. Oh, there's so many ways to think about it. But again, I want to emphasize that sometimes it's obvious as when a law says women can't do this, but men can. Before 1971, there were lots of laws that were explicit like that. Men could become administrators of estates and women couldn't. Men could get credit cards in their own name, women couldn't. I'm talking about under federal law. And after we became persons, that changed. But because of the unequal protection nature of unequal protection, it isn't always explicit in the black letter law, but it is very obvious in the enforcement and non-enforcement of laws. For example, all studies show that violence against women is disproportionately under-prosecuted, undercharged, and underpunished. Across the board, it has never not been that way, and became very clear to us in terms of the data when the Violence Against Women Act was being proposed to Congress, because a study was submitted to Congress at the time called Deto on the Road to Justice that measured how violence against women was being treated in the courts compared to other kinds of crimes. And it was not just obvious, but a huge disparity, a reflection, if you will, of the fact that harming a woman was much less offensive and much less worthy of resources in terms of the criminal justice system than crimes against people's stuff. A really explicit example of how we disproportionately devalue women's lives is seen when you compare what larceny and theft law is to, for example, rape law. If I take your stuff without your consent, if I take your money without your consent, that's called larceny. If I also use force when I do, that's called robbery. It's a higher level of the same crime, theft. By contrast, if I take your bodily autonomy, if I offend your body in an intrusive sexual manner, and it's non-consensual, it's not a crime in most states unless I also use force. In other words, the baseline definition of the taking of a woman's bodily autonomy or personal integrity isn't even a crime unless force is used, even though the taking of her stuff would be a crime regardless of force. Now, some states do have rape without consent, regardless of force laws on the books now. Some do. But most don't. I mean, Massachusetts, it's not a crime in Massachusetts and in most states to sexually penetrate a person without their consent, unless you also use force. That is outrageous, but it's a stark example of how the unequal protection of women manifests in the real world. Another really quick example I'll give you is that in about half the states in this country, women are as a category are not covered by the state's hate crime laws. So if I beat the hell out of you because you're Irish, that's a hate crime in every state. But if I do exactly the same thing to you because you are a woman, it isn't. That is so obviously an expression of government discrimination against women, particularly when you realize that, and no one disagrees with this, women suffer more crimes because they are women than does any other category suffer crimes because of who they are. So we suffer the most hate crimes and we are the least protected. That is only allowed as a legal matter under the Constitution because women aren't entitled to equal protection of hate crime laws. That's just a really stark example of the point. But it also captures things that aren't in black and white law, as I mentioned before, like police under arresting, prosecutors undercharging, judges underpunishing. Those are classic examples as well, only it's not as obvious, right? It's not as obvious when you say yes, but prosecutors disproportionately undercharge violence against women and will give out a restraining order as a civil alternative rather than file criminal assault and battery charges. We don't decriminalize crimes against other people by giving out restraining orders, which is a civil non-criminal option. We only do that, and when I say only, we primarily do that, we disproportionately do that when the victim is female. That's allowed because of our constitutional status as unequal persons under the law. I could go on and on. Rape law is chalk-filled with examples of special evidentiary rules that don't apply in other kinds of cases and that are overtly discriminatory against women, such as the prior false claim rule. In almost every state in this country, rape victims are forced to answer the question: have you ever made a prior false allegation of rape before? And if so, that's allowed to be used against them. Rape victims are not asked, have you ever made a prior false allegation of robbery? And robbery victims are not asked, have you ever made a prior false allegation of either rape or robbery? Just rape victims, just prior false allegations of rape. And there is no scientific or database support for why that rule is in place. Why would you impose a higher level of scrutiny on the credibility of woman in a way that doesn't really bear on anything? You can make a prior false allegation, and it has nothing to do with whether you're telling the truth on the night in question. So the fact that we structurally have this special rule in place almost across the board in every state in this country, not every state is the same, but they're similar. It just tells you that the ground from which our rules emerge, our rules of evidence emerge, is sopping with that permissive language from the Constitution that you can treat women differently and worse. You can be extra skeptical of them, you can make the legal system more burdensome, more onerous. It's allowed, and so it happens.

SPEAKER_01 17:09

So the playing field then is always going to be unlevel, uneven, unfair if the victim plaintiff is a woman.

SPEAKER_00 17:18

Yep. Yep. And it's not, I want to be clear, I'm not talking about an uneven playing field between the victim and the defendant. There are good reasons that that playing field is uneven, right? Because it's the government against the defense, and the victim isn't even a party to the case. She's a witness for the state. Right. So I don't like using that language to talk about uneven playing field. I'm talking about a constitutionally mandated unequal playing field in all aspects of women's lives, including when they suffer violence and abuse and try to seek justice. The justice system is designed to work less well when the victim is female.

Education As The Missing Catalyst

SPEAKER_01 17:58

So I think I understood that in as a concept overall, right? Because of the work that I do with Genesis, Women's Shelter and Support and the Conference on Crimes Against Women. But I did not understand it in quite the particular detail that you have shared with us. And I would venture to guess that a lot of people listening don't have that level of understanding of how just how disproportionate the rights are for women and why we struggle so much when we're talking about gender-based crime and getting those crimes properly prosecuted and bringing justice. So this provides a lot of clarity to me, at least, as to why the work we do is so challenging. I mean, we've made a lot of progress since 1971, but it's still if we are at a disadvantage because of the way the Constitution is designed, then we will always be at a disadvantage unless we have that equal rights amendment.

SPEAKER_00 19:02

Well, there are a couple of ways to get to equality, but you're absolutely right. Nothing will work. Nothing. Again, it's pushing crumbs around on a broken plate. That's a nice way to think about why we oughtn't waste too much time and energy trying to fix things like statutes and rules and policies, because they're always subject to that unequal enforcement problem. And more importantly, maybe because people do think changing the constitution is difficult and it is hard to understand conceptually, even for lawyers. My students, I teach an upper-level law school class. And even my students struggle with understanding the way the inequality manifests in a constitutional sense because constitutional law is hard. It's really hard. But that's one of the reasons that a primary initiative of mine, I shouldn't call it an initiative more like a talking point, is education around this issue. There is zero, zero being done right now from K to 12, and even in college, and to a large extent even in law school, that actually communicates to women and girls that they are not yet equal under the law. If you don't tell someone that they don't yet have full legal equality, they're not going to fight for it. They will suffer injustice, they will be frustrated, they will try to, I don't know, create organizations and protest. But if they don't understand the cause, they won't fight for the fix. So we have to find a way to force feed this information into our educational system first, so that women, when they do suffer injustice, can connect the dots and then put some energy toward the solution. Where if you learn as a young girl that you don't yet have legal equality, you might well gear your career toward doing something meaningful around fixing the problem. On the other hand, if you never learn that you don't yet have legal equality, and let's say you grow up and you marry a man and he's very abusive and he's beating you all the time, and you keep calling police and he keeps getting arrested, but the revolving door at the courthouse keeps sending him home, and you basically learn that nothing's going to happen to this guy, and you give up because you feel hopeless, or worst case scenario, you kill him because you're desperate. There's nothing else you can do. This happens. A lot of women are in prison because they kill their abusers out of desperation and hopelessness. My feeling is if we could communicate the real reason they feel so hopeless, maybe they would turn that energy toward fighting for constitutional reforms and not then end up feeling so desperate themselves that they have to take law into their own hands. And also when you can communicate to a woman in a way that they can make sense of what feels unfair, when any person can make sense of something that's making them upset, you can rationally move forward, you can process the information, you can, you might not like it, but because You can make sense of it, it won't make you crazy. I have very strong feelings about this that women, when like what you said, Maria, when women connect the dots, and when I give these sorts of lectures and they say, Oh my god, now I get it. It changes them. Not it doesn't fix the law, but it changes how they feel about that internal rage that they're going through. Why is this happening? Why does no one care? Why have I lost my children in the family court system? What the hell? And instead of becoming literally mentally ill sometimes, they just lose their minds. They can focus and say, okay, I'm not crazy. This is the law that's making things happen. How can I channel my energy toward helping in a meaningful way? I'm telling you, it's a revolutionary way of thinking about the problem because it's informational, but it's also recognizing that someone's experience as valid when they are otherwise not getting a lot of that feedback in the systems.

Founding Myths And Coverture Legacy

SPEAKER_01 23:03

See, I knew that there was a reason why I always wanted to have this particular conversation, whether on a podcast or just with an expert myself, because this has given at least me a lot of clarity about why we are where we are at this moment in time and potentially a way forward that doesn't feel like I am pushing that rock up the hill. Because there are things that we can do, and maybe we can get into that in a few minutes. But here we are, just 20 minutes or so into this conversation, and it's like someone turned the lights on because I think everyone listening can agree that we just learned a ton in an encapsulated amount of time and in an encapsulated form about why women who especially those who experience violence, domestic violence, gender-based crimes, are suffering so greatly when it comes to getting justice, getting help through the criminal justice system. And a thank you for that. And this goes, this problem goes all the way back to when this country was founded, right? And as you said, it came over to us from British law, and I think that it was John Adams who said to his own wife who made the argument about remember the ladies, right? That's a quote from Abigail Adams, and he he said no, that from what I have read, my understanding of the use of the word men was in fact white property owners, potentially slave owners, at that period of time. And it never included women, the enslaved, or people who did not fit that definition, correct?

SPEAKER_00 24:38

Oh yeah, no, there were no. No one would really deny that. There are times today when we pass a law, and if the word man is used, it might be construed to mean both. But back then the use of the word male was absolutely intentional, and it started with the Declaration of Independence. We're about to have our 250th anniversary, and I think now is a really good time then to start paying attention to what went wrong from day one for women. And it includes that phrase is right there in the early section when it says all men are created equal. That was intentional. Absolutely, as it was intentional when the word persons was used in 1868 and the 14th Amendment and the Supreme Court intentionally declined to recognize women as persons. This is not accidental at all, not even a little. Really, when you realize that we didn't have the right under federal law to get our own credit cards until after 1971, you don't need a lot more knowledge than that to understand that we weren't persons at all under the Constitution for equal protection purposes until after 71. And then almost seems like people sat back and got comfortable after 71 because, hey, we can now get our own credit cards. What we should have done at that time was really looked at that decision, read versus read, and condemned the Supreme Court. There should have been protests in the streets instead, unfortunately, because there were a lot of women's groups at the time that are still around today, like the National Organization for Women, that were designed and intended and formed and founded for the purpose of undermining women's fight for equality. They remain to this day a problem in terms of our fight for equality, and yet they're the best known, they're the best funded. It's hard to make people uncomfortable about what they think is true about the people and groups that they know. So instead of having a revolution when Reed came down, there were people saying, Isn't this wonderful? Well, no. It's like celebrating separate but equal. Maybe some people did celebrate because separate but equal was slightly better than separate but unequal. But right away, Plessy versus Ferguson, where we got that concept from, which said it was acceptable to have totally separate spaces for black people and white people, we eventually got rid of that in Brown versus Board of Education. But what I like to say to women is we're in our own plessy right now, right? We're in not only separate but equal, we're in separate and unequal space, which is really worse than plessy. How are we gonna get to our Brown versus Board of Education and who's taking us there? Who are our leaders? Who's giving us information, at least to understand the problem as a plessy problem? How are we gonna get to Brown versus Board of Education, which said you cannot separate black children and white children? That's absurd. We will never get there without leadership. And at this time, no women's groups are interested. None of them actually inform the way they ought to. None will say the things that I've just said to you. Some people might, but the groups won't, because they get enormous amounts of money not to empower women with this kind of knowledge. So I like to think of this movement as grassy as grassroots get. And I like to encourage people to be careful, among other things, be careful never to support the propped-up leaders that you think are helping. Because there's a very good chance that if they're propped up, they're not helping. And that's just like a way of thinking. If the groups that we think are helping women were in fact helping women, we wouldn't be where we are. We'd at least know what we should know. And there's no organizational information campaign, much less a repair plan in place. So let's just leave everybody alone. Don't send your money to the big groups, don't support them, don't look to them for guidance. Come together in small groups, be fiercely committed to each other as individuals who have no interest in getting funded. This is important. Don't worry about getting funded. Don't worry about making other people happy. Be laser focused, and more importantly, be very fiercely nonpartisan in how you approach issues. Because the reality is neither political party supports women's equality. So I am always fiercely nonpartisan. I sometimes vote for Alice Paul, and she's been dead for a long time. But I do it not to waste my vote, but to make a point that Alice stood for something when she said women have to be fiercely nonpartisan, and she founded the National Women's Party to be a nonpartisan organization that would hold both sides accountable. And she was brilliant. And she would say to both sides, if you're not going to get equality for women, we're not going to vote for you. And she died in the 70s. So she was around when we did have the capacity to use our votes as leverage to get equality. And Alice was the only one doing it. And unfortunately, when she passed, there was an unfortunate effort to, let's just say, dissolve the National Women's Party, and it dissolved pretty quickly. So I'm not saying we need a whole National Women's Party. What I'm saying is, in terms of understanding the nature of the problem, you're not going to find it on Google. You might even not find it on ChatGPT or all these places where we go for information because there is no well-supported space for the information to be shared. And so it has to be literally ground-level, grassroots, one-on-one conversations, and people who will agree to come together for the sole purpose of establishing equality, fiercely nonpartisan, incorruptible. Those are the three things. And we can do it. We do need some leadership. We do need people who care about women's lives to make clear that the most severe expression of discrimination against women is the violence they endure at very high rates. So if you care about violence against women, if that's your thing, you have a responsibility to become aligned with an organization that is fiercely nonpartisan, incorruptible, and aimed at one thing and one thing only, which is establishing women's full legal equality. If we had full legal equality, if the government was required to protect women equally from violence, the numbers that we're seeing, the epidemic of violence against women, would be cut in half overnight.

SPEAKER_01 30:45

So what does that solution look like? Is that one sweeping change with the Equal Rights Amendment or something else?

ERA Strategy And Court Fights

SPEAKER_00 30:51

Oh, yeah. Well, the Equal Rights Amendment is one way to get us there. And it was filed in the early 1900s. It eventually passed Congress in 1972, but at the last minute, Congress tacked on a deadline of seven years, basically sending it to the states for ratification, but with a very short window. For all of the time before that, it did not have a deadline. And Alice Paul wrote the Equal Rights Amendment. She knew if they put a deadline, we wouldn't get it done because it took us decades to get the vote. It was going to take even much longer to get equality. So she knew when they tapped the deadline on that it was going to kill the ERA. And she was crying the day Congress passed the ERA while all the other corrupt groups were happy. She was crying because she said we lost. She knew. And the reason I tell you that story is because some women never gave up. Some women kept fighting and saying, we don't care if the deadline expires, we're going to keep fighting. And we did. So we didn't get to the states we needed, which was 38. We didn't get there by the time the deadline expired. But then women kept fighting. And we kept pushing back and saying, you know what, we're just going to keep going till we get the 38 states we need. And then we'll go to court and argue about whether the deadline is valid. And we did that. That happened in January 2020. We got to the last state. I actually was leading the national litigation effort, and I filed a lawsuit in Massachusetts federal court in January of 2020, the right before Virginia became the last state to ratify. And I sued the federal government to make them put the ERA in the Constitution because they were resisting. They were saying, we're not going to put it in. The deadline expired. And my lawsuit said, you have to put it in because the deadline is invalid. And if I'm right that the deadline is invalid, then you have to put it in. Well, those lawsuits that were filed under the Trump administration soon were being defended by the Trump administration. Well, Biden and Harris took over a year later and the lawsuits were still pending. And a lot of women thought, well, this is great because they're going to come in and stop fighting these lawsuits. They're going to come in and agree that the ERA is valid because they said they support the ERA. And that did not happen. In January 21, when Biden took over, he fought the same lawsuits in the same way. There were two cases. Mine was first. There was another one filed in DC federal court. He fought the same lawsuits in the same way and made the same arguments Trump did against women's equality, against the ERA. That was a big moment when women said, wow, I guess no one's on our side. And then we kept fighting, like kept filing more lawsuits, more lawsuits. We've got to find a judge somewhere who will just say the ERA is valid. Well, that has been a lot of work, but no judge yet has agreed with us. However, that's not our only avenue. And I want to be really explicit here. The other way we can get to full equality is simply by suing any kind of case where a woman is treated differently, unequally, suffers any kind of discrimination or bias by the government. Anytime that happens, we need to be in court saying we will not allow you to apply those second-class enforcement standards. We want full equality. We want those strict judicial review standards applied. We object to you applying anything weaker, which is what we got in 1971. We object, and moreover, that weak standard, it's called intermediate scrutiny, that weak standard is itself unconstitutional because intermediate scrutiny violates the clear guarantee of equal protection of the laws. So I've been filing those sorts of lawsuits too. So even if we never get the ERA validated by a judge, we can make a big fuss in the courts, consistently claiming in all cases where a woman is treated unfairly, in every single one of those cases, make a stink about intermediate scrutiny, complain about it as an unconstitutional doctrine that was just invented out of whole cloth by the Supreme Court. It's time to go. We can't tolerate this anymore. Women have waited long enough, we've suffered enough, this is unacceptable, this is anti-American, etc. That's what I've been doing in my cases saying erase intermediate scrutiny. In other words, erase our Plessy versus Ferguson rule of law. Get us to full equality, which is our Brown versus Board of Education. We've waited long enough.

SPEAKER_01 35:11

I would vote for that. Yeah. So, and it also sounds like that is a heck of a lot of lawsuits to file, if that's the route that people need to go to try to change the course of action here.

SPEAKER_00 35:24

Yeah, but they're easy. They're easy. They're very easy to do. And I've filed about eight already. I'm just going to keep filing them. They're not hard lawsuits because they're very straightforward.

Rape Charging Barriers And Force Rules

SPEAKER_01 35:33

Got it. Okay. So let's also talk a little bit about all of this more specifically within the context of violence against women. So maybe you could give us some examples of how unequal treatment has shown up in things like charging decisions and maybe expand on the special rules of evidence and how they impact domestic violence or sexual assault cases.

SPEAKER_00 35:56

Oh, there's so much to be said here. On the charging decision, I think one good example is that unlike all other kinds of felony crimes, where police have unilateral authority to make arrests as they see fit, in many jurisdictions, police cannot charge, cannot arrest, cannot initiate an actual criminal case when the nature of the case is a rape, unless the prosecutor approves it. This is a really incredibly important area of the law where not only are women treated unequally, because for no other felony are police forbidden, as a matter of policy, to file charges. But what this ends up doing is it delays the decision, which is always a problem, and it also politicizes it so that a if the police feel strongly that a crime occurred and they want to go charge and they believe they have probable cause and so forth, and they know that the charge is valid and they feel like the evidence is there beyond a reasonable doubt, their hands are tied unless the prosecutor agrees. Well, if they have to go get permission from the prosecutor, and the prosecutor then wants to interview people again and talk to the victim and have this, that, and the other thing happen, and you're more likely to get a negative decision than you would be if the police alone could make the choice. That is discrimination. The fact that police have a policy of not ever filing charges without prosecutorial permission in a rape case, that is explicitly discrimination against women, and it happens across the country. I don't know that every jurisdiction does it, but lots and lots of jurisdictions do that. So a victim will go to the police and report that a rape happened, and unless it just happened two minutes ago, the police are going to put the brakes on instead of doing the right thing, which is go get the guy, make an arrest, let's get going, because that's what you do generally for crimes that get reported to you, right? Assuming you have probable cause for arrest and it's a felony where the police don't have to witness it, they should just go make the arrest.

SPEAKER_01 37:53

That's also the type of case so you mentioned there has to have been force used against the right.

SPEAKER_00 37:59

Well, that's a whole other issue. Let's assume there was force reported.

SPEAKER_01 38:02

I've actually been thinking about what you said about that this whole time because I struggle to understand how there could be a sexual assault if there wasn't force. Typically, in some way, a person is forced to commit or to submit to that type of an act.

Re-Victimization In Courtroom Practices

Money Behind Unequal Enforcement

Voting Power And Alice Paul Playbook

Equal Means Equal And Title IX

SPEAKER_00 38:17

Aaron Powell Well, no, in fact, a lot of rape happens without force because of the dynamic in the relationship. It's either someone who's bigger, stronger, less drunk. I could go on and on. There are many rapes that happen without use of force but are absolutely criminal, non-consensual. But because the law requires proof of force, that whole category, like a teacher raping a student, that just that whole category is non-criminal because force wasn't used. Now I know that you're probably thinking, well, the just the penis into the vagina is force, but most courts have held that is not sufficient force unto itself. There has to be more. In general, that's the rule. And so that takes it away from our ability to say, of course, everything is forceful. No, that doesn't work. It should, but it doesn't. So the requirement of force is a barrier, and that's a separate problem than whether you go report this to the police and they feel like, okay, there's force, there's non-consent, we have no doubt you're truthful, but there's nothing we can do. Among other things, the guy could leave the country, go set up a fake alibi, cover evidence, wash clothing. It's just the dumbest thing to do. You want police to be able to act urgently because it's a serious felony, and this is the only felony for which they can't do that. It's outrageous. Another example, oh, this will really wait to hear this one. In West Virginia, and I don't know if this is the law anywhere else, but I was lawyer on this issue in West Virginia when it happened, so I know it's the law there. A minor rape victim was ordered by a court to submit to the penetrating examination of her hymen by the defense. They wanted to check the condition of her hymen, and they said this was just part of the right to discovery that the accused has since he's charged with a crime. The prosecutor tried to object and it went up to appeal, and the prosecutor thought the appellate court would reject it as absurd. They didn't. The appellate court, led by a woman, said, What's the big deal? Women go to the gynecologist all the time. Now, put aside for a minute the fact that we know the data shows that it's unlikely that even a child victim will have an injured hymen because their bodies repair the tissue, and hyens are often intact even when the victim has been raped, and sometimes even raped multiple times. One famous study was looked at like a hundred, I don't know what the rip number was, it was a substantial number of impregnated teenagers. So we know there was penetration, and I think two of them had hyments that weren't intact. And that that just tells you something. But it didn't matter. The court didn't care that the data wasn't there. The court didn't care that this was a violent, brutal re-rape of the rape victim in the name of justice without any authority. There's no authority of a defendant to touch you, much less go inside your body. The court didn't care. So the prosecutor hired me, and I literally sued the judge. I sued the whole Supreme Court, I think it's called the Court of Appeals, but I sued the whole appellate court in federal court for violating the victim's Fourth Amendment rights and federal constitutional rights. And my argument wasn't, I wasn't trying to sue them for money. I sued for what's called injunctive or equitable relief to just get a federal court to issue an order saying you can't do that's illegal. But and my case was really moving ahead as it should have, favorably in the eyes of the court. And lo and behold, because the victim at the time was living in Appalachia, she was really struggling, and I didn't have physical access to her. I was in Boston. The defense went to her and paid her cash and she submitted to the exam. And they filed a suggestion of mootness brief, which is to say they they caused my case to be dismissed, so I never got the victory that I knew I was going to get. But they did that on purpose to create mootiness because they were worried that the appellate that the federal court was going to say, of course you can't do this, you idiot. But the good news is, even though that case went south, the fact that I made such a fuss about it and was allowed to file and was correct, it helps to be correct, did inhibit judges from enforcing that rule, but it's still the law in West Virginia. Another law that you've probably done some coverage on, or certainly you've heard of, is when judges issue orders forbidding victims to use certain words and phrases during their trial testimony. This kind of started with the Kobe Bryant case because the victim there was forbidden to use the word victim during her testimony. And as a former prosecutor myself, I had faced many of those kinds of motions telling me what words to use, and they were never granted. But I understood they were trying to make me as the government not use words that made it sound like the guy was guilty. That's I get that. I don't necessarily agree because a lot of the words I use as a prosecutor make the guy sound guilty. That's the whole point of being a prosecutor. But there was just this intense focus on the language used in court that made the bad guys feel bad. So Bryant successfully, because everybody was paying attention, Kobe Bryant successfully persuaded the judge to forbid the victim to use the word victim. And then, of course, these things exploded, and I got called to Nebraska to represent a victim there, who not only was told she couldn't use the word victim, she was told that she couldn't use a long list of words, including assailant, attack, rape, abuse, sexual assault. She had to refer to the sexual assault nurse examiner as the sexual nurse examiner. She had to call the sexual assault kit the sexual kit. I'm not kidding. So I fly down there because I was looking for a good test case to sue. And I get there, I get pro hacked in and I file my paperwork, and the judge just waits me out. He's he knows I've got five kids and I can't stay forever. So at some point a week later, I had to leave and I told My client, he's gonna call you in the minute I leave and he's gonna ask you questions. And this is the thing, you gotta be prepared to make clear that you're not gonna obey his stupid order. It's illegal. But so anyway, he calls her in exactly as I planned did happen, and he calls her in and he says, Do you understand my order? And she said, Yes, I do. And do you understand you can't use all these words? And I've told you that, and you're gonna get in bad trouble if you use these words. I'll hold you in contempt and put you in jail. Do you understand that? She said, Yes, I do. And he said, So do you agree to obey my list of words you cannot speak during trial? Do you agree to obey my order? And she said, Your Honor, when I raised my hand to tell the truth, the whole truth, and nothing but the truth, so help me God, that's exactly what I'm gonna do. He got so angry, he slammed the gavel, he dismissed the case, and that enabled me then to sue the judge in federal court because that now we had time. The prosecutor said he was gonna refile charges. This is a guy that had multiple rapes. This wasn't this like his fourth victim. But so I sued that judge in federal court and asked the federal court to rule that my client had a First Amendment right to use whatever damn words she wants. You can't censor a victim and using descriptive language to talk about what happened. You can keep out content areas. You can't talk about the such and such thing that happened, but you can't tell her how to talk about what her experience was. In fact, that actually undermines the rights of the accused because the jury might judge her in a certain way based on her language choice. Maybe she's hyperbolic, I don't know. But anyway, again, it was such a great case. Of course I was correct, but the judge in federal court was livid that I would be so audacious as to file a claim against a judge. And he said something like, It is outrageous that a woman lawyer from Boston would come to Nebraska and do her gender politics in my courtroom, blah, blah, blah. Footnote. On the other hand, it is outrageous that a judge would tell a rape victim not to use the word rape during her testimony. Indeed, it is reminiscent of the kinds of things we hear about from countries where women are in burkas and like it was all this really like good stuff for me. But of course, the whole decision was critical of me, insulted me, it just was all hostile to me. And then a state senator in Nebraska filed a lawsuit against God and went on CNN because of my case and said, if a rape victim can sue a judge, then I can sue God. And I was like, Yeah, good luck getting service on God. But anyway, I was really flattered, and also this taught me something that when you start to irritate people at that level, you're doing the right thing. So I still do these kinds of things, suing judges, not for money. It's to win a ruling that forbids the state court judges from violating a victim's constitutional rights, where if I don't file, they're gonna get away with it because the state court's allowing it, but it's violating her federal rights. So, bottom line, these things are doable, but here's the problem, Maria. No judge said this out loud in my cases, but they could have said, yes, we are disproportionately burdening rape victims with this censorship stuff where we're gonna tell them what they can say and can't say. We're disproportionately burdening them because they are female and we are allowed to treat them differently and worse. Same with the hymenal examination. They never say out loud, yes, we have carved out a special, terrible rule of evidence just for this woman, because the Constitution permits us to do that. They don't say it, they just do it. Or as Justice Scalia said in 2010, and here's why they do it. It's not that the Constitution requires discrimination against women, it's that it doesn't forbid it. So where it is allowed, it happens. Especially if by allowing it to happen, enormous sums of money are being made, which is true about violence against women. From the pornography and the sex trafficking industries to literally anything that involves exploitation of women and girls, we're talking about hundreds of billions of dollars. Hundreds of billions. If women had basic legal equality, some of those billions would disappear in terms of profits for those companies that are making all that money. And that's partly because this is so simple when you think about it. If you can rape a woman and get away with it, because the legal system allows under enforcement, then you can take pictures of it, you can make videos of it, and you can sell it and make a fortune because you are allowed to videotape and record and sell that which you can pretty well assume is highly unlikely to be prosecuted and stopped. I mean, it's really that simple. Enormous sums of money are made from the depiction of women being raped and tortured, for example. A lot of pornography depicts women being tortured, and yet we have laws against torture, and women aren't even allowed to consent to torture. It's illegal for anyone to consent to torture. But because torture laws can be enforced differently and worse when applied to women, it's less illegal to torture a woman. Therefore, you're more likely to get away with it if you put videos of women being tortured in your films that you're making a fortune selling. So it's really that simple that it's almost always about money. There's an incredible amount of money being made from the violence and abuse that women endure. And so long as that amount of money is being made and the basis for allowing that kind of money to be made is the Constitution, there's going to be an enormous amount of money against women becoming equal under the Constitution. And we'll never have that amount of money. Women will never have the money it takes to fight dollar for dollar against the money that is being made from them being unequal. That's why when I suggest that our proposal for moving forward, if we really do want to fix the Constitution, is to come together across party lines, across all lines, and agree to be nonpartisan, incorruptible, and hyper-focused on one issue and one issue only, and that is equality. If we can do that, then we don't need money. Because there are 170 million women in this country, and all we need to do is agree to vote a certain way at each election. And if we can leverage 170 million women's votes and make our votes work only for one reason, which is to achieve full constitutional equality, it will happen because both parties desperately need women to vote for them. So we have incredible leverage, but we've never wielded it. We haven't ever propped it up against the powers and forces that are harmful to us. As I said, Alice Paul knew how to do this, and it's one of the reasons the Women's Party is the driving force behind us winning the right to vote. Alice formed the National Women's Party in 1916, and she used it to force both parties to give us the right to vote. Now that sounds weird, like how do you use your votes when you don't have the vote? But the votes she used were coming from the western side of our country where women did have the right to vote. The eastern side didn't, we didn't yet have the right to vote. But in under state law, women toward the west of our country, because we were moving in that direction, building our nation. And sometimes the people out there would say, Come on here, bring your family, we'll let you vote. And women often had to agree with the husbands, fine, I'll move to Wyoming. Well, only if Wyoming offered her the vote. So it was used as a prize for people who were willing to go across the prairies. And then Alice knew that she could leverage those votes. And she did. She went to Congress and she went to the state legislation. She said, We're going to make sure that person doesn't get elected unless you do what we want, which is to give us national suffrage, give us the right to vote. Because of Alice and the power she leveraged through those votes, and those were small number of votes compared to what we have today. She is solely, really solely responsible for the fact that we won the vote when we did. I'm not saying she's solely responsible for the fact that we won the vote, but when we did and how we did it, she was the genius behind that. Then she used that same technique to start pushing for the ERA. Literally 1923, right after we won the vote, she filed the ERA because she had she was a two-trick pony. She was gonna get the vote and then equality and then she was done. So she quickly moved on to equality and was doing the same thing with women's votes. We're not gonna vote for you unless you give us the ERA, blah, blah, blah, blah. But she was so powerful that an incredible amount of effort was used to marginalize her, to silence her, to discourage women from supporting her. And I think the point is that these things do go in cycles, and we're now at the other end of that cycle. We're ready to rally again. We've reached that point where Alice lost her woman's party when she died in the 70s, and we've been frustrated and irritated and misled, co-opted ever since. And now we're there. Now we're at that place where we can see where we've been, we can see how we got here, and we can see what we need to do to move forward, and that is go back to the Alice Paul strategy. Come together. We don't need a party. Political parties are hard to form. We don't need a political party because we're not going to be raising money. We're going to be raising people. We raise people without money by coming together and being literally electronically being in the same space and agreeing in that same space to vote the way we need you to vote on XYZ issues or for XYZ people only because it's going to push us closer toward full equality. If you will agree to be part of that leveraging, then you will help change the world. That's why I don't think it's hopeless at all. Fixing the Constitution is very challenging, but this pathway makes it easy.

SPEAKER_01 53:45

You have a partner in this space, Kamala Lopez, in which a documentary was created titled Equal Means Equal. What is that about? And who is it for, and what is the impact of that?

SPEAKER_00 53:56

Yeah, I love working with Equal Means Equal, and Kamala Lopez is such a force. She's wonderful. She's not a lawyer, and this is important for people doing legal activist work to understand. A lawyer can file all kinds of things, but you gotta team up with someone who's not a lawyer but can bring people together. And so I've been teamed up with Kamala for many years. Her film that she did, Equal Means Equal, was created for the purpose of helping people understand these basic issues that we've talked about. Women are not equal. It's a problem. We need to fix it. And although it's a bit of an older film now, she is still really the most important voice in the educational movement, just getting people to watch the movie and understand. Oh my god, I didn't know. And as she'll tell you, she started doing this because she was like you. She was somewhere and she walked up to a person who was dressed like Alice Paul, and they were having a conversation, and that person, the character, said, Women don't yet have equality. And she said her mouth dropped because she's like, I'm a grown woman. How do I not know this? And a lot of women do say that. They they don't know. So she was so upset, not only about the problem, but about the fact that she didn't know that she created equal means equal, and she's been a really just the leader, and in many ways, the most important leader because she is not corruptible. It doesn't matter what you give her, she's not going to give up. And a lot of the other women's groups, as we talked about earlier, not only aren't actually sincerely interested in women's equality, they're interested in diverting resources to them to create the appearance that they're the go-to people. I tell a little bit more details around all of this in my LARVI article, which is subtitled Constitutional Terrorism. It'd be very nice if your listeners and viewers could take a look at my article, again, subtitled Constitutional Terrorism, because I intentionally used that provocative phrase to create a deep understanding of what it feels like to be female in this country. You don't always get beaten, raped, and killed, but you live in an unfair fear that it could happen. You live your life more in fear than other people do because you know your government has permission to treat you differently and worse when it comes to protecting you from violence. How could you not feel terrorized by that? It's just the nature of the structured legal predicament that we're in, that we feel terrorized, less free to walk free, less comfortable walking free, less respected in all aspects. So we come to accept our subjugation because it seems normal, because it's just what everyone's doing and saying and seeing. Another really good example of the norm around treating women differently and worse and people not even knowing that it's a problem is in the K-12 schools across this country, when they do diversity programming, they don't even include women as a class of people. They don't include women as a category. You have to say, why is there no program for women? Why is there a program for every other category? There might only be a handful of students interested in one topic and they give that a whole day of programming. Women are like, come on, man, we're getting sexually assaulted all the time in high school. Guys are calling us names, nobody seems to care. Can we please have a place to express our suffering as women? Please. And schools won't do it. Schools also treat Title IX as a second-class civil rights law compared to Title VI. And I guarantee you, most of your listeners don't even know what Title VI is. This is a problem, too. Title VI is a civil rights law, it applies in education, and it speaks to the violation of civil rights that happens when a person is treated differently or worse because of race, ethnicity, religion, national origin, all the categories there. That's Title VI. When women fought for equality, especially in the 60s and 70s, we wanted to be added to Title VI. We just wanted another name to be added. And we were told, no, you're gonna have to have your own separate and worse law called Title VI. Title IX reads exactly the same as Title VI, but it is treated differently and worse on every campus of every school, K-12, colleges, and beyond, every single school segregates out Title IX. And of course, we know Title IX covers sexual assault in connection with education and domestic abuse and dating violence. So this is really serious when it comes to the age group that we know suffers very high rates of abuse by men. They literally go to school under mandate by the government every day and are told, because this is both what's in the rules and how they're treated, that if they suffer harm because they're female, they're going to be treated differently and worse than a person who suffers harm because of their race, ethnicity, religion, whatever. Girls learn, therefore, to accept subjugation as normal because it's in the room. It's what they're going through, it's what they're experiencing, and no one ever tells them to ask the question, why are you treating women differently? Why are you treating girls differently? Why? Why do I get suspended if I give an insult to someone because they're Irish, but no one gets suspended if they call me a bitch? It's not that it's not obvious. It's that no one gives information to help people understand that they're the same thing. A harm against a woman because she's female is exactly the same thing as a harm against a person because they're black or Jewish or Irish or whatever. Under the law, they're the same under the law. The difference is the Constitution permits schools to treat Title IX problems differently and worse. Therefore, what do we have the highest rates of in all of our schools from K to 12 through grad school? What do we have the highest rates of? All those categories. And women and girls, the numbers are like this. Here's women and girls suffering in connection with education, and here's everybody else. You can combine all those other categories and they don't come near the numbers that women suffer. And if you learn when you're going to school that no one's going to protect you from abuse by a man, you're going to take that with you into your adult life. You're therefore going to be much more likely to submit to your abusive husband, much less likely to report rape, much less upset when the legal system treats you like crap because you've spent your entire life learning biosmosis almost. That's what you deserve.

SPEAKER_01 1:00:31

Wow, I'm just I'm so blown away. Wendy Murphy, thank you for talking with me and for educating us about this extremely important topic.

SPEAKER_00 1:00:41

Thank you, Maria, and thanks for inviting me.

Closing And Conference Announcement

SPEAKER_01 1:00:44

Thanks so much for listening. Until next time, stay safe. The 21st Annual Conference on Crimes Against Women will be held May 18th through the 21st, 2026, in Dallas, Texas. Learn more at conferencecaw.org and be the first to know about all conference details, as well as the latest on the Institute for Coordinated Community Response, Annual Conference Summit, Beyond the Bounds, and the National Training Center on Crimes Against Women. When you follow us on social media at NationalCCAW.