Ruined

• Date: 01 December 2022

“Ruined”

MAYBELL ROMERO*

Judges play a critical role in one of the most important stages of a crimi-

nal case’s adjudication—sentencing. While there have been substantial limi-

tations placed on the discretion judges can exercise in devising punishments,

there are little to none on what judges say at such hearings when articulating

their rationales for the sentences they impose on convicted defendants. This

Article examines the language judges use when sentencing defendants con-

victed of rape, sexual assault, and sexual abuse that describes victims of

those crimes and the harms they have sustained, especially language that

describes victims as “ruined,” “broken,” or “destroyed.” The use of such

language, while apparently meant to be empathetic, only serves to uphold

misogynistic understandings of rape and sexual assault and actively harms

victims. Judges trying to justify harsh sentences for defendants convicted of

sex crimes also engage in shaming and exploitation of victims when saying

that defendants have left victims “ruined” at sentencing.

In this Article, I use traditional scholarly methods of reviewing and

analyzing cases and legal doctrine to show why the use of such language

is harmful to victims and flouts the purposes of criminal punishment.

However, I also engage in autoethnographic methods, relying on my own

experiences of rape and sexual assault, as well as prosecuting such

cases. This Article considers how other fields such as medicine and pub-

lic health have approached destigmatizing other historically stigmatized

conditions such as substance use and mental illness, arguing that judges

should take similar steps to destigmatize being a victim of rape and sex-

ual assault by more carefully considering their language use at sentenc-

ing. I conclude by reflecting on the use of personal narrative in legal

scholarship and in the classroom and argue that it can be a powerful

tool that scholars should more openly embrace.

* Felder-Fayard Associate Professor, Tulane University Law School; U.C. Berkeley School of Law, J.D.

2006; Cornell University, B.A. 2003. © 2022, Maybell Romero. I am grateful for the support and

encouragement I found presenting this piece from friends and colleagues at the Criminal Law Works-in-

Progress Workshop Series sponsored by the Association of American Law Schools Criminal Justice Section

during the summer of 2021, and specifically Michal Buchhandler-Raphael, Madalyn Wasilczuk, Colin

Miller, and Jamelia Morgan, as well as those who provided feedback at the University of Virginia Virtual

Criminal Law Works-in-Progress Workshop in October 2021; my colleagues at Tulane Law School; and

faculties who have let me workshop this piece with them, including those at the University of Illinois School

of Law, Pace School of Law, and Drexel School of Law. I owe much to the commentators who gave me

advice and feedback when this paper was just an abstract at the 2021 Northern Illinois University

Chicagoland Junior Scholars Conference, particularly Janice Nadler, Guha Krishnamurthi, Jacob Bronsther,

Paul Gowder, Evan Bernick, and Daniel Harawa. I am also especially grateful to my dear husband, Brian

Frye, for believing in this Article and not letting me abandon it the many times I wanted to.

This Article is dedicated to Brian, who made me happy enough to finally be able to write it.

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TABLE OF CONTENTS

INTRODUCTION . .. .. . .. .. .. .. . .. .. .. .. . .. .. .. .. . .. .. .. .. . .. .. .. .. . .. 239

. .. .. .. .. . .. .. .. .. . .. .. .. .. . .. .. .. .. .. . ..

I. “BROKEN” LANGUAGE 244

. .. .. .. . .. .. . .. .. .. . .. .. .. . .. .. .. . .. .. . A. “RUINED” HISTORY 244

. . . . .. . . . . . .. . . . . .. . . . . . .. . . . . .. . . . . 1. Coverture245

. . . . .. . . . . . .. . . . . .. . . . . . .. . . . . .. . 2. Marital Rape248

. . . . . .. . . . . .. 3. Marriage in Lieu of Prosecution of Rape249

. . . . . .. . . . . .. 4. Being Labelled “Ruined” and “Broken”251

. .. .. .. . .. .. . .. .. .. . .. .. .. . .. .. .. . . B. SENTENCING EXAMPLES253

. .. .. .. . .. .. . .. .. .. . .. .. . C. AN AUTOETHNOGRAPHIC APPROACH255

. .. .. .. .. . .. .. .. .. . .. .. .. .. . .. .. .. .. . .

II. “RUIN” AND PUNISHMENT 258

............................................

A. TRADITIONAL THEORIES OF PUNISHMENT AND THEIR (REAL-WORLD)

APPLICATION 258

. .. .. .. . .. .. . .. .. .. . .. .. ..

B. DEVELOPMENTS IN PUNISHMENT THEORY BEYOND THE

RETRIBUTIVE/UTILITARIAN BINARY260

.........................................

C. MY (PERHAPS UNSUCCESSFUL) ATTEMPT AT A PERSONAL THEORY

OF PUNISHMENT261

...............................................

D. JUDICIAL MOTIVATIONS AND THE HARMS OF BEING PRONOUNCED

“RUINED”264

. . . . .. . . . . . .. . . . . .. . . . . .. . . . . . .. 1. Stigmatization265

. . . . .. . . . . . .. . . . . .. . . . . . .. . . . . . 2. Essentialization267

. . . . .. . . . . . .. . . . . .. . . . . .. . . . . . 3. Retraumatization268

. . . . 4. Perpetuating Stereotypical Versions of Victimhood270

. . . . .. . . . . . .. . . . . .. . . . . . 5. My Experience of “Ruin”271

. .. .. .. .. . .. .. .. .. . .. .. .. .. . .. .

III. FINDING ALTERNATIVES TO “RUIN”273

. .. .. .. . .. .. .. . .. .. . .. .. .. . .. .. .. . .. .. .. . .. .. A. ADDICTION274

. .. .. .. . .. .. . .. .. .. . .. .. .. . .. .. .. . .. .. .. B. MENTAL ILLNESS276

. .. .. .. . C. POTENTIAL INTERVENTIONS RATHER THAN FACING “RUIN”277

. .. .. .. .. . .. .. .. .. . .. .. .. .. . .. .. .

238 THE GEORGETOWN LAW JOURNAL [Vol. 111:237

IV. THE ADVANTAGES OF OPENNESS 278

CONCLUSION. .. .. . .. .. .. .. . .. .. .. .. . .. .. .. .. .. . .. .. .. .. . .. .. .. .. . . 280

INTRODUCTION

My first real position in legal academia was as a visiting assistant professor at

the J. Reuben Clark Law School at Brigham Young University in Provo, Utah. I

was a small-town practitioner for nearly a decade beforehand and was making the

transition to a new career as an academic that I never anticipated would ever hap-

pen. I was excited to be starting a new venture. The law school at the time seemed

excited, as well. My face was on the law school splash page, announcing my

recent hire, albeit a temporary one. The school’s public relations coordinator at

the time even decided to do an interview with me to introduce me to the law

school community. I was grateful for the support, and the interview went well.

The questions were, for the most part, straightforward—questions about my

research and what I anticipated teaching would be like—and I was excited to an-

swer them.

There was one question, however, that threw me off and that I somehow was

not prepared for. It was the question of what led me to the law in the first place. I

gave the answer that I have given so many times since then, to friends, potential

employers, and to students: that growing up in inner-city Long Beach, California,

during the 1992 Los Angeles riots

1

On April 29, 1992, a jury issued not guilty verdicts on almost all charges that were brought against

four Los Angeles policemen. The charges arose from their sadistic beating of Rodney King, a Black

man, during a traffic stop in the San Fernando Valley. The police officers were white. After tasing King,

the officers beat him savagely with batons, kicked him, stomped on him, and eventually handcuffed and

hogtied him. See Cydney Adams, March 3, 1991: Rodney King Beating Caught on Video, CBS NEWS

(Mar. 3, 2016, 6:00 AM), https://www.cbsnews.com/news/march-3rd-1991-rodney-king-lapd-beating-

caught-on-video/ [https://perma.cc/P7K3-AKUC]; Timeline: Rodney King and the LA Riots, 89.3

KPCC, https://projects.scpr.org/timelines/la-riots-25-years-later/ [https://perma.cc/RS9L-7MWF] (last

visited Oct. 4, 2022).

Video of the beating was played many times over on both local and national news. The trial of the

policemen was also covered extensively by news media, and the coverage was widely, from my own

childhood recollection, consumed. It was consumed widely enough that when the policemen were

acquitted, a multiday riot—or uprising, depending on whom one asks—began, starting on April 29,

1992, and lasting for six days. See Timeline: Rodney King and the LA Riots, supra; Angelenos Mark 30th

Anniversary of LA Riots, CBS L.A. (Apr. 29, 2022, 11:57 AM), https://www.cbsnews.com/losangeles/

news/angelenos-mark-30th-anniversary-of-la-riots/ [https://perma.cc/VCY6-H8PK].

put me on the path of studying the law, ques-

tioning why the criminal legal system functioned the way it did, and wondering

what specifically I could do to benefit my community; that somehow going to law

school and becoming a prosecutor would situate me to be the most effective I

could be at reforming the criminal legal system and making it less brutal and

discriminatory.

That was a lie.

While the reasons that I articulated that day were important to me, I had been

telling people that I wanted to be a prosecutor since the time I was about seven

years old—perhaps even a little earlier. And the real reason I had for wanting to

1.

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