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More Thoughts on the Dangerous Fragility of Men

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18 Responses

  1. Lawrence Cunningham says:

    Much more enlightening and persusaive.

  2. Ken Arromdee says:

    1. The handgun “statistic” you quote is an example of a commonly spread set of statistics that’s so misleading it may as well be called a lie. The statistics compare the number of civilians killed to the number of criminals killed. Most of the time a gun is used in self-defense to save a life, the criminal is not killed; usually, the gun is not even fired. Measuring efficacy by number of criminals killed, rather than by number of lives saved, is therefore deceitful; the goal of self-defense is not to kill the criminal, but to save the innocent person.

    2.How are we to respect male soldiers’ alleged solicitude for the welfare of their female comrades when the latter are more likely to be raped by a fellow soldier than killed by enemy fire

    That’s another misleading statistic, because the better the army is at preventing its soldiers from being killed by enemy fire, the worse the number sounds. The same statistic is used by anti-war groups to compare the number of combat deaths to accidents, to make the military sound accident-prone.

    By your reasoning, if there were no deaths by enemy fire at all, it would be *really* bad because it would be *infinitely* more likely to be raped than to be killed in battle.

  3. Joe says:

    The enemy fire comment criticized by #2(2) needs to take various variables into consideration. That is, why is the army able to reduce killings by enemy fire more than rape? Women are less likely to be open to enemy fire – a relatively rare occurrence – than open to rape since they spend much more time in barracks etc. where the possibility arises. If there are more ways to reduce rape, likely, that haven’t been done, that’s an issue, but as noted, the statistic is somewhat misleading.

  4. Orin Kerr says:

    Mary Anne,

    If I understand you correctly, your argument is that we know society tolerates and even encourages murders and rapes because they occur much too frequently to have any other explanation. That is, the fact that these crimes exist shows that society encourages or at least tolerates them, because if society didn’t have that view, these crimes wouldn’t exist at all in the first place. From that perspective, the fact that everyone severely condemns the crime afterwards, and the state seeks a very severe criminal punishment, is not relevant: We judge society’s views by what facts society allows to occur, not what people say or how the state responds ex post. Am I right that this is your argument?

  5. PrometheeFeu says:

    “What exactly are the other plausible explanations for the high rate of male violence against women? What is the explanation for why 1 in 4 women in the U.S. has experienced domestic violence in her lifetime? Or why women account for 84% of victims of intimate partner violence while men account for 83% of all spouse murderers? Or why nearly 1 in 5 women have been raped? Or why men account for 99% of all rapists? Or why more than half of all rapes go unreported? Or why the arrest rate for reported rapes is 24%?”

    Proving lack of consent beyond all reasonable doubt is hard. That probably accounts for the low rate of conviction which probably accounts for the low arrest rate, the low reporting rate (together with the fact that sex is a very private thing which makes discussing one’s rape with a stranger most likely a harrowing experience) etc…

    I have seen some efforts by some to make consent a defense as opposed to an element of the crime. I think this goes against the more general liberal tradition though. Sex is a common activity and to make all who engage in sexual activity guilty of rape unless they can prove consent would be a mistake.

    “How do we explain why a 17-year-old sexual assault victim would be threatened with jail time for naming the boys who admitted they had assaulted her because doing so “ruined their reputations,””

    She was threatened with jail time by the boy’s lawyer because she violated the confidentiality of the juvenile court. And please read the second page of the article you link to:

    “Instead, press coverage of Dietrich’s plight went viral and began trending on the blogosphere. Dietrich’s online petition to have the contempt charges dropped received 50,000 signatures within 24 hours, making it one of the fastest growing petitions on The boys lawyers withdrew the contempt motion, but not before there was a tidal wave of backlash against the two boys.”

    Lawyers who are paid to defend the interests of the rapists threaten jail, the media and the public come rushing to support the victim. This is perhaps one of the worst examples you could come up with of your claim that society supported the actions of the lawyers.

    Overall, I do agree that a myth of male fragility is used by some to excuse the inexcusable. But I still find many of your arguments and examples less than convincing.

  6. Colin says:

    Prof. Kerr,

    I cannot speak for the author, but I don’t see why you conclude that her argument is that “the fact that everyone severely condemns the crime afterwards, and the state seeks a very severe criminal punishment, is not relevant.” Society tolerates violence in sports, for example, but still condemns and punishes egregious specific instances of it. Are the condemnations irrelevant to our tolerance of the phenomena generally? My first reaction is simply that society’s a priori actions are not entirely consistent with its post hoc responses. Those responses are still relevant to, and should be seen in context with, the a priori attitudes towards the phenomena in question.

    As I said, though, I cannot speak for the author. Please pardon me if I’ve muddle the issue by misunderstanding her point, or yours.

  7. Orin Kerr says:


    I’m not entirely sure what the argument is, which is why I asked the question. But my tentative understanding was that Professor Franks thought such matters irrelevant because, in response to my pointing out society’s condemning of the cases she mentioned, she responded as follows: “It takes an extraordinarily constrained version of the world to point to the criminal prosecutions of some high-profile killers and rapists of women as evidence that society actually condemns violence against women or racism against young black men.” I took that to be disagreement with the suggestion that prosecution of a person for their criminal act is any evidence that society condemns that person’s act. But maybe I misunderstood it.

  8. Colin says:

    Prof. Kerr,

    I see your point, but I read that statement as an observation that such prosecutions are not dispositive evidence, rather than an argument that they are “not relevant” or “any evidence” as you suggest.

  9. Orin Kerr says:

    Colin, I don’t think they’re dispositive evidence. It’s easy to imagine conduct that might be criminally prosecuted but that society does not condemn, such as mala prohibita crimes that are prosecuted primarily for their deterrent value rather than out of retribution. But I think of murder and rapes as the two most heinous offenses that society most harshly and universally condemns, so I’m not sure how to reconcile view with Professor Franks’s view that society encourages or at least tolerates such heinous conduct. That’s what I’m trying to figure out.

  10. Howard Wasserman says:

    One question (and this was discussed in Mary Anne’s earlier post) is what part of the judicial process we see as “reflecting” societal attitudes. Is it the mere fact that an argument has been raised in a legal proceeding, on the assumption that a party/attorney would raise an argument only if it were non-frivolous and the party believed it might work? Or is it only when the argument carries the day before the judge or jury?

  11. Joey Fishkin says:

    It seems to me that if a behavior is in fact enormously widespread in a society, that is pretty strong evidence that the society in some way tolerates the behavior — even if it is legally proscribed, even criminalized.

    I think sometimes we law professors are inclined to look to statute books or cases to decide what society “condemns” or “tolerates” — that is, if legislators have passed a law saying X is illegal, we say ok, society has condemned X. But this is a rather “constrained,” to use Professor Franks’ word, way of thinking about what “society” is tolerating or condemning. In fact that is a way of thinking that probably makes sense only to lawyers, judges, and law professors — people with an intense focus on law. More relevant to most people’s experience is probably the sociology, not the law, of X; even if there is a broad criminal prohibition against all X, as a sociological matter it might nonetheless be true that people widely expect that a lot of X will go on, don’t think some X is so bad or should really be prosecuted, perhaps would single out some subset of really bad X (or X against some categories of victims) as the subset of X that is really worthy of punishment, while other X is ok, or should not count as X, etc. In that case it would be fair to say that society does not fully or entirely condemn X, but to some degree tolerates it, even if there’s a law prohibiting all X. And if X is _really_ enormously widespread as an empirical matter, than at some point it becomes hard to escape the conclusion that society in some way “encourages” (at least some forms of) X, as opposed to merely tolerating it. I think this is part of what Professor Franks is arguing and anyway it’s my own view.

  12. Orin Kerr says:


    Thanks for the response. I don’t think anyone is suggesting that the mere fact that a criminal statute covers an act means that society condemns it. No one who has read through a criminal code book could think that. Rather, the question is how we know whether society condemns or encourages an act. One way to find that out is to ask people what they think of such acts. A second way to figure that out — really an imperfect proxy for the first — is to see how the governmental bodies tasked with reflecting the judgement of the community respond to the act; not just in the sense of whether the legislature prohibited the act ex ante but in terms of whether the executive brought harsh criminal charges and whether the judge/jury convicted ex post.

    One way to square these different views is to say that there are horrible acts that society condemns but does not do enough to actively prevent. Individuals will commit heinous acts that society condemns, and society should do more to express its condemnation ex ante to shape conduct and actively avoid the harms in the first place. From that perspective, the argument becomes about why society is less active than it should be about preventing acts that it condemns. I think that approach manages to reconcile the fact of condemnation ex post with the occurrence of the act more effectively than saying that society “encourages” the act. My 2 cents, anway — or, by now, $2.

  13. New Prof. says:

    Mary Anne, thanks for the detailed post. This is indeed an interesting discussion.

    I want to first address a theme that floats around paragraph after paragraph: the notion of “privilege.” You write this:

    “It is very hard to confront the possibility that the world we live in is more unjust than just, especially if we ourselves benefit (however unintentionally or even unwillingly) from some of the structures of its injustice. I also believe, however, that even the most sincere form of this skepticism is in part a product of privilege. Some of us have the luxury of being ignorant or indifferent to the pervasiveness of a certain form of harm . . . .”

    Mary Anne, disagreeing with your description of the world’s unjustness does not equate with disagreeing that the world is unjust. But I will agree that our relative privileges can pervert our conceptions of the degree and quality of the unjustness.

    A good example of a perverted conception of the world’s unjustness that arises from privilege is an argument that emphasizes violence against women in demonstrating a relative acceptance of that specific subset of violence, even though, as an elephant in the room, men suffer from most of the severest forms of violence more than women.

    Privilege is having society in general recognize your problems and actually focusing on ameliorating them. It’s a Violence Against Women Act. White House Council on Women & Girls. Etc. This exclusive focus on women’s suffering, in turn, leads to the privilege of one being able to claim a heightened gender-consciousness while at once focusing on the suffering of only one sex in defining “reality.” The conception of unjustness yielding from that privilege leads to the dismissal of others, who attempt to be more holistic in their gender consciousness, as being driven by “fear,” “delusion,” and “privilege” because they choose not to chivalrously ignore male suffering and the logical implications that suffering has on feminist reasoning.

    And the privilege some women enjoy is the privilege of not recognizing their many gendered privileges at all, and, at once, calling men out on their alleged privilege in the specific context of violent crime, even though men are, for example, 78% of murder victims. Call it a “meta-privilege.”

    The perverted definition of “unjustness” manifests in deeming only half of the nation’s violent victimization worthy of consideration when determining how society reacts to harmful behavior.

    On that note, returning to domestic violence—another form of violence the male of victims of which go largely ignored—your response is problematic, and at once is illustrative of the selective focus I argue is the essence of misandry (the concept you think is nothing but a sham). I provided you a law review article wherein Professor Linda Kelly carefully dissects and examines the data and confirms the rough symmetry in DV, and also discusses feminists’ attempts to obscure this symmetry. You respond by arguing that the article was “debunked,” moreover debunked by “every credible authority,” but then cite to one “credible authority” that “debunks” a study that Kelly’s article never relied on; indeed, Kelly never mentions the Capaldi study. And Kelly did not make her assertions in a vacuum. Rather, by reading her article, you can see her references to “credible sources” that confirm her claims, namely work by Suzanne Steinmetz, among others.

    The ultimate point is that I believe your chains of reasoning are too creative and your evidence too tendentiously characterized. A good example would be your superficial use of the UNC controversy as an example of social excusal of violence against women, when what you failed to mention in terming the respective young man a “rapist” is that he was found not guilty of rape by a school council (consisting of both male and female students and faculty) and, in any event, he has not been found guilty in a court of law.

    I will make clear my agreement with what another poster has written: “Overall, I do agree that a myth of male fragility is used by some to excuse the inexcusable.” Thus, I have no doubt your views to a degree reflect reality. The only problem—and it’s a huge one—is that your views reflect only one half of it. And that makes such a crucial difference, since arguments such as yours are always relative: privilege, oppression, etc., are always relative to the status of others. Your approach appears to allow you to view female suffering in a vacuum, which is largely due to a systemic misandric tendency to see female suffering as the only suffering worthy of gendered focus. Synthesizing whatever truth your arguments may contain with my views yields the conclusion that, IF society is tolerant of violence, it’s tolerant of violence generally. This harms women disproportionately in some discrete contexts, and men disproportionately in other discrete contexts. A claim of a net excusal of violence against women specifically requires one to engage in the misandric dismissal of gendered male victimization. Or, at best, it reflects, to use your words, a tendency to “assert[] . . . intuition as empirical reality.”

    Lastly, I wholeheartedly agree with your statement:

    “[T]here is a tendency on the part of privileged individuals to overstate their vulnerability, This tendency towards exaggerated sensitivity is important because it stunts what might otherwise be a meaningful process of self-examination.”


    Oh, and also, this:

    “I am perplexed by those commenters who don’t seem to think there is a link between the high prevalence of a phenomenon and society’s tolerance or encouragement of that phenomenon.”

    You should not be stunned because it’s a significant non-sequiter that you haven’t squarely dealt with beyond stating your hunch that it should be obvious and providing a chain of references to specific events that, while provocative, are not helpful.

    Howard, I think we should focus on the punishment phase more than any other. In this regard, I noticed that Mary Anne did not address the sources I provided demonstrating that women receive lesser punishments for killing men than vice versa (adjusting for defenses such as battered-women’s syndrome, etc.), and for other crimes, and how the article that Mr. Wenger cited to actually supports the idea that this is largely due to nothing but blatant sexism (chivalry) in deciding who lives and who dies (death penalty) or how heinous a particular victimization is. How is this not the best evidence of society sending the message that it’s relatively acceptable to harm one sex more than the other?

  14. Colin says:

    Prof. Kerr,

    Are you saying in essence that society may have a greater taste for specific deterrence than general deterrence for these crimes?

  15. NewProf, I’m not sure exactly what you’re saying. Are you saying that privilege does not exist? Or are you saying that privilege does exist, and it mostly favors women?

  16. I should mention ahead of time that I’m already on the record as doubtful that “female privilege” has much explanatory power, as I’ve written previously at:

  17. Shag from Brookline says:

    Query: Should the phrase “the dangerous fragility of men” be countered by “female entitlement” in the manner of Justice Scalia’s Etna-like eruption during oral arguments on Shelby County?

  18. Mary Anne Franks says:

    Orin, I appreciate your continuing interest in this discussion. I hope it is clear, as Colin and Joey suggested, that I don’t take the position that laws against (and sometimes vigorous prosecution of) certain harms count for nothing with regard to society’s general feeling about such harms. I just don’t think they count for everything, and I can’t really state it any better than Joey did: “if X is _really_ enormously widespread as an empirical matter, than at some point it becomes hard to escape the conclusion that society in some way “encourages” (at least some forms of) X, as opposed to merely tolerating it.” Moreover, legal prohibitions of certain acts are, to put it mildly, ambiguous. A harsh rape law, for example, may actually serve the purpose of reinforcing the notion of men’s entitlement to women’s bodies rather than rejecting it (e.g. by treating rape as a property crime committed by men against other men, or by defining the crime in such a way that allows exceptions for husbands to rape their wives, or by granting the law’s protection only to supposedly “worthy” victims such as virgins or “non-promiscuous” women – as many societies, including our own, have done and some continue to do).

    My basic point is, once again, that unless one believes that violence and discrimination against women and minorities is an inevitable feature of humanity, the high incidence of such violence and discrimination requires an explanation. Moreover, I offered in both posts numerous examples of outright encouragement of the dangerous male fragility mentality, and I asked, in all sincerity, what accounts for them if not at least some support from some segments of society.

    In addition to these examples, I suggested looking at the character of several of the comments in response to my post, and I think the responses to this post are even more revealing. Take a look at Prometheefeu’s response to the Savannah Dietrich case (that would be the response that includes the patronizing admonition for me to read the article I myself linked to): “She was threatened with jail time by the boy’s lawyer because she violated the confidentiality of the juvenile court.” Only someone who is pre-committed to valuing the interests of admitted rapists over those of their victim could offer that statement as a justification or explanation for what happened in this case. What precedent is there for a judge deciding on her own initiative that a rape victim is not allowed to speak about her own experience under any circumstances outside of the courtroom? Prometheefeu refers to the “confidentiality of the juvenile court” as if this were some sort of natural and unimpeachable conception. This would be the same commenter who was sounding the alarm at the supposed threat to free speech posed by my draft statute on revenge porn only a few weeks ago ( According to such logic, a statute attempting to address a serious harm is required to hammer out every possible detailed exception to ensure compliance with the most fundamentalist reading of the First Amendment, but a judge ordering a rape victim not “speak about the incident to anyone for any reason,” raises not a single concern for freedom of speech. Again I ask: what accounts for this kind of response? Is it not yet another example of magnifying the interests of men who cause harm and prioritizing them over the interests of the ones they harm?

    But there’s more: this commenter thinks I should be chastened by the fact that some people found threatening a rape victim with jail outrageous and signed a petition to this effect. But why should we assume that the actions of some good people some of the time tell us more about “society” than the repeated bad actions of others at other times? Savannah Dietrich was sexually assaulted by two boys who recorded the attack for posterity. She then had to stand by as the prosecutor, without Dietrich’s consent, offered and received acceptance of a plea deal that “punished” the boys with 50 hours of community service and a requirement of counseling, and the possibility of having their records expunged when they turn 19. She then had to listen to the judge in the case forbid her from speaking about her sexual assault. After asserting her right to speak about her own experience, she was threatened with jail. But all Prometheefeu sees, in all of this, is how much society “supports” Savannah Dietrich because a petition was signed and the defense lawyers reconsidered the wisdom of having Dietrich put in jail. No wonder he finds my examples “less than convincing.” Indeed, I am not surprised that my arguments fail to convince a person so thoroughly committed to prioritizing the rights of rapists over the rights of victims.

    Or, as I mentioned before, consider the worldview espoused by commenter New Prof. For those unfamiliar with his particular brand of dog whistles, New Prof is a men’s rights activist – part of an entire movement built around the cult of imagined male fragility. I won’t link to any of their sites (any more than I would link to sites run by white supremacists), but the Southern Poverty Law Center has great information about them here at (I linked to this in my post but it’s worth linking to again) and you can also find out more about their “movement” here: Now, we could dismiss New Prof’s increasingly shrill demands for me to pay attention to his imagined and/or irrelevant grievances as too marginal to be considered a reflection of “society,” but it’s worth considering that he claims to be a (law?) professor and that men’s rights activists are gaining enough ground for the SPLC to consider them worthy of investigation and monitoring.

    We have some good laws, and we sometimes use them correctly. There are some good people, and they resist bad things. Neither of these observations disproves the claim that our society tolerates, and even encourages, the use of male fragility to justify or excuse violence and discrimination.