People Are Tone Policing The Judge In The Larry Nassar Sentencing & It’s SO Sexist

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Former U.S. gymnastics team doctor Larry Nassar was recently sentenced to 40 to 175 years in prison after pleading guilty to seven counts of first degree criminal sexual conduct, and over the course of the sentencing hearing, Judge Rosemarie Aquilina allowed 150 women to give their testimony. It was both a horrifying and empowering thing to observe woman after woman take the stand. But after the case came to a close, another public response besides the acknowledging of the bravery of the survivors emerged: People on social media are criticizing Judge Aquilina of not being sufficiently "impartial" in the hearing, in two particular ways. They object both to her public calling-out of Nassar's letter to her, in which he complained that hearing the testimonies of so many women would be bad for his "mental health" and wrote "Hell hath no fury like a woman scorned," and to her closing statements, in which she told him, "I just signed your death warrant." She should, critics say, have been less judgmental and less "vitriolic." But this criticism and tone policing plays into a particularly insidious type of misogyny, and it's important to look at why.

On a legal level, Judge Aquilina was perfectly within her rights to go hard on Nassar, and here's why: He had already pleaded guilty in November. Judge Aquilina was not determining whether or not he had conducted the crime, a situation in which she would indeed be required to weigh all sides of the situation equally. Instead, the sentencing hearing was conducted in the full knowledge of Nassar's guilt and as a way for Aquilina to determine, to the best of her professional ability, what kind of punishment Nassar's crimes merited.

As David von Ebers, who is a senior legal editor for Thompson Reuters Practical Law, pointed out on Twitter, the appeals court law in Michigan, where Aquilina practices, lays out the role of the sentencing judge quite clearly: "Sentencing is the time for comments against felonious, antisocial behavior recounted and unraveled before the eyes of the sentencer. At that critical stage of the proceedings where penalty is levied, the law vindicated, and the grievance of society and the victim redressed, the language of punishment need not be tepid." Aquilina was free to speak to Nassar harshly, and in the circumstances, faced with his own confession of guilt and days of testimony by women who had been violated by him, many of whom came to him as underage gymnastics competitors hoping for physical aid, it is not hard to see why she did.

Because of the legal precedent von Ebers points to, which has been cited in subsequent cases, Aquilina was not unprofessional, nor was she "vitriolic" or over-emotional. There's another, deeper issue here, and it's about women getting angry in professional spaces and how that's still viewed as "inappropriate."

Here is the crux of the matter: It is part of Judge Aquilina's job to determine the emotional weight and harm of the actions of criminals. Aquilina has been given high praise in recent days for being a strong advocate for the women who have come forward to reveal their trauma at Nassar's hands, encouraging their stories and helping them feel safe. She is in control of the future of the people who appear in her sentencing hearings, and she is under no obligation to be polite to admitted serial sexual predators if she doesn't want to. And that remains, for many people, a challenging thing to witness.

Women have only been judges in the United States since 1870, and debates about women's "fitness" to judge others have continued to be popular since that time. In Germany, a vote by the legal body in 1921 defeated the idea of women as judges 245 to 5, with a long judgement explaining that women were too emotionally volatile to be properly judicial. As recently as 2011, Alabama Senate candidate Roy Moore, who was accused of sexual misconduct with a minor, reportedly co-authored a course that taught that women were unfit to hold the office of judge. Judge Aquilina's treatment is thus part of a long history of criticism of women on the bench. But that in itself is an element in a larger context: the notion of women's anger in public being somehow dangerous. Policing the tone of her judgement isn't about treating Nassar "in the way he deserves"; it comes from a societal distrust for women who are visibly angry and powerful.

Not all criticism of Aquilina's work in this case comes from a sexist position; some advocates of assault survivors, for instance, have suggested that along with her praise of the women in her courtroom, she could have placed more emphasis on the circumstances in which survivors choose not to report. Others, meanwhile, suggest that her comments on "cruel and unusual punishment" — that if the Constitution allowed it, she "would allow some or many people to do to [Nassar] what he did to others" — crossed a line. However, calling her "mean" or "vitriolic" is out of line for several reasons. Judge Aquilina was under no legal obligation to be kind, or even impartial, to Nassar. That is not how the judicial system in America works. And expecting her to "make nice" rather than using her position on the bench to express fury, a fury she is rightly allowed to feel as part of her responsibility for sentencing a serial predator, is sexist — at best.