How ‘Boys Will Be Boys’ Still Poisons Our Legal System

In 2016, three Kansas men were charged with domestic terrorism for their plans to bomb an apartment complex where Somali refugees lived. Prosecutors detailed the men’s stockpile of weapons and ammunition, their surveillance of the refugees and recordings of them saying, “The only good Muslim is a dead Muslim.” In their defense, their lawyers argued that the men’s terrorist plot was simply bluster and “locker-room talk” — not criminal activity — implying the terrorist plot fell within the range of normal male behavior. 

The strategy was ultimately unsuccessful, but when courts accept such claims as valid, they gain legitimacy, explains sociologist Erin Hatton in “Legal ‘Locker Room Talk’: Essentialist Discourses of Masculinity in Law,” published in Men & Masculinities earlier this year. Hatton analyzed 118 cases from 2000 to 2019 in which lawyers, judges or witnesses used phrases like “alpha male,” “boys will be boys,” “locker-room talk,” “male behavior,” “male culture,” “just horseplay” and “roughhousing” — many times successfully. 

Her interest in the subject was partially driven by President Trump claiming his discussions of sexually assaulting women in 2016 were just “locker-room talk.” Not long after that, she came across the story of the Kansas terrorists making the same claim. Disturbed — but not that surprised — she wondered if others were using such language to excuse behavior among men.

I recently spoke with Hatton about the ways in which male violence is regularly normalized in the American legal system, how sexual assault and child abuse are frequently dismissed as “boorish, clumsy flirtation” and why many courts continue to accept the “boys will be boys” defense for criminal male behavior. 

What’s problematic about using a term like “locker-room talk” in a court of law? 

First of all, there’s not an equivalent phrase for women. You could theoretically say women engage in “locker-room talk,” too, but it doesn’t carry the same cachet. It’s a phrase related purely to masculinity, suggesting that whatever it refers to — whether a sexual assault or a terrorist plot — it’s typical talk for men’s spaces. It’s ludicrous to suggest that this is somehow natural to men.

In another “locker-room talk” case you mention, State v. Kirkpatrick, the defendant was appealing his conviction for conspiracy to commit murder after discussing plans to kill his son-in-law with another man, who went on to commit the murder. 

He said, “That wasn’t conspiracy to commit murder. We were just casually talking, as men normally do in a man-only space, about planning a murder.” It’s shocking. But these phrases could be used to refer to any kind of behavior. For example, in Brandon v. County of Richardson (the subject of the 1999 film Boys Don’t Cry), the family of Brandon Teena filed a wrongful death suit against a Nebraska sheriff. A primary point of contention was the sheriff’s antagonistic, transphobic questioning of Brandon after he was assaulted and raped, which included “So they got ready to poke you?,” “Was he enjoying it?,” “Did you work it up for him?” and “Why do you run around with girls instead of guys, being you are a girl yourself?” A prosecutor testifying on behalf of the sheriff described this line of questioning as “locker-room talk.” 

Here, we see the phrase being used to describe an array of highly criminal behavior. Brandon was ultimately killed by his assailants. Defending the sheriff’s line of questioning, the prosecutor said, “There’s definitely some of what we might call ‘locker-room talk,’ but I’ve asked such questions to defendants myself,” using the phrase to suggest that this is just what men are like when women aren’t around. 

It extends to racist talk, too, right? In one of the cases that you cite, a Sicilian-American car salesperson argued he’d been illegally fired after complaining about workplace harassment because his coworkers called him slurs like “wop,” “greaseball” and “Sicilian dirtbag.” The court dismissed the harassment claims, arguing that his treatment never went beyond “the sort of crass locker-room talk common among coarse or boorish workers at certain businesses.” 

They refer to the fact that at this car company, 90 percent of the employees are men, so this level of racist harassment is just what you’d expect when men are around. That’s incredibly demeaning to men because it legitimizes violence, assault and racism as being inherently male attributes. The take-home isn’t just that there’s a double standard between men and women, but how much deeply problematic behavior is justified as being natural to masculinity. 

You also mention that “law is a theater of the legitimate.” What do you mean by that?

Like many spaces in life, the court is a site of cultural production where things can be dismissed as illegitimate. So it’s a theater, where ideas about gender are circulated, reified and reproduced, and sometimes even institutionalized in law. One of the more troubling implications is the degree to which male violence is normalized in law. Like in the 2012 habeas corpus case, U.S. v. Shah, a Pakistani student at the University of Texas admitted to participating in combat training in preparation for “jihad” against the United States, but then said that it was “just boys being boys, playing soldiers. We’re just normal guys shooting guns.” It’s deeply alarming that this was their justification for calling for war on the U.S. government in the name of religion. 

Another defense that repeatedly comes up, even to explain the sexual abuse of children, concerns “horseplay.” In one case, Ortega v. State, the defendant claimed his fingers accidentally went into his 9-year-old stepsister’s vagina while they were “playing around,” and another defendant argued that his grabbing and squeezing of two 14-year-old girls’ breasts and buttocks was “just horseplay.” So just another case of boys being boys? 

Again and again, defendants claimed that touching a child inappropriately was just something that happened in the course of horseplay. This defense isn’t culturally available to women, though. There’s an idea that men are so aggressive that any abuse, including sexual abuse of a child, isn’t intentional, but an artifact of playing around, or horseplay.

It extends to racist and homophobic ideology, too. In one case, Goodwin v. Fast Food Enterprises, an African-American man accused a Burger King employee of spitting in his food in an act of racist discrimination, but Burger King said, “It was only because of the immature horseplay among the workers.” In another, Tyndall v. Berlin Fire Co., a firefighter was persistently harassed by coworkers who called him “gay boy,” “f*ggot” and “homo,” and playing a “game” in which they asked him, “What’s the capital of Thailand?,” before hitting him in the groin while shouting “Bangkok!” Lawyers for the fire company argued it was “nothing more than teasing/horseplay,” which wasn’t refuted. 

Courts are continually trying to draw a line between what’s normal for men’s shitty behavior — flirtation, harassment, teasing — and what’s illegal harassment. It’s allowed a lot of leeway for misbehavior among men and boys in locker rooms, on sports teams and in the workplace. 

Another case, Mathis v. Wayne County, involved the harassment of two middle school boys by their older basketball teammates, including “games” such as “lights out,” in which the older players turned off the lights and humped and gyrated on the younger boys, and “blindfolded sit-up,” in which the older boys convinced a younger boy to do a sit-up while blindfolded and then placed their naked buttocks in front of his face, causing a collision. The court found that such conduct could be construed as “harmless shenanigans among boys,” but ruled that the pranks grew more aggressive, culminating in an older boy anally penetrating a younger boy with a marker. This act, the court said, was “not just horseplay gone awry.”

So turning off the lights in the locker room and gyrating on the younger boys physically, or pinning them down, making them do a blindfolded sit-up and making their face run into someone’s bare bottom, that could just be harmless shenanigans. But anally penetrating a younger boy with a marker, that was a bit too far, implying a locker-room prank is maybe one level further than locker-room talk, but still not criminal activity. 

And again, this isn’t an available defense for women. One court even noted that women aren’t capable of horseplay in the way they defined it to include aggressive, harassing behavior. To me, that was shocking.

The term “alpha male” also comes up a lot, like when defense counsel challenged a felony conviction for a client’s part in a murder and robbery by arguing that he was not “and will never be an alpha male.” 

The defense insinuated that the client was under the sway of another “alpha male,” so he couldn’t be held responsible for a robbing spree. It suggests that some men are natural leaders who enforce their dominance with deadly violence. But this guy wasn’t, so he needed to be let off the hook. 

“Alpha male” also extends to good qualities. In one case, the adult children contested the terms of their father’s trust which, instead of naming the son as trustee, named a neighbor instead, who then stole money from the father’s account. In his defense, the defendant claimed the father was an “alpha male,” and furious with his son for trying to manipulate the terms of the trust. Though finding him guilty of violating his fiduciary duty, the court endorsed his gendered assessment of the father, confirming him to be an old World War II fighter pilot who went on to start his own company in the “rough and tumble world of oil and gas drilling in Malaysia.” But the court found he was vulnerable to being manipulated by someone who played to his ego. 

Thus, in the court’s construction, alpha males are energetic, egotistical, rough and tumble men. The neighbor misspent the funds in part because the victim was an “alpha male” and vulnerable to someone playing to his ego. It’s painting a picture of a certain kind of man that’s physically strong and egotistical, but vulnerable to someone who built up his ego and tricked him.

The “male culture” defense also came up in a case in which a guy was appealing his death row sentence for having killed multiple sex workers. His father was a macho asshole his whole life, he explained, who had been abusive and disrespectful to women, including his mother. So it was his father’s fault. In fact, his father testified on his behalf saying, “I’m part of this male culture, and I raised my son in this way.” The suggestion is that some segments of men are raised in a culture in which being violent toward women is normalized, so they shouldn’t be held criminally liable for murdering a woman.

One defense of groping I’ve heard in the #MeToo era is that it’s just a form of playing around. That’s reminiscent of another case you present, in which the defendant claimed his sexual assault of a female coworker was simply “stupid male behavior.” 

The guy pinned a female coworker to her desk and aggressively attempted to kiss her. His defense was, “If my clumsy attempt to flirt and hold hands constitutes the basis for a felony offense, then a whole range of stupid male behavior would be subject to serious criminal liability. Boorish, clunky flirtation is just what guys do.” I only found one dissenting opinion in which a judge wrote, “We can no longer justify this behavior as boys being boys.” In every other case, no one raised an objection. 

The “boys will be boys” defense has also been used to explain risk-taking. 

Yes, there was a case in which a couple of boys drowned in the Oconee River in Georgia and the mother sued the county. The judge said explicitly, “Boys will be boys and will engage in risk-taking behavior,” but because of the way Georgia law is written, the danger of water is assumed obvious. 

Given all of this, what should change in the court system? 

I don’t know where the seeds of change begin in courtrooms per se. Judges, lawyers, defendants and plaintiffs are just people. But in this space, they’re people who have significant power. I hope my article is at least a start at identifying these patterns and the degree to which masculinity being inherently violent is so frequently employed and often accepted as a legal defense. That should no longer be the case. The suggestion that men are inherently violent, racist, transphobic, sexually aggressive or prone to horseplay that results in child sexual abuse can’t be an acceptable legal defense, because it can’t be an acceptable notion.