Monday, 18 May 2009

Debunking common excuses for rape

Tony Veitch, Matthew Johns, the English rugby team last year. Every time one of these "scandals" (read alleged assaults) take place, the same sorry cliches inevitably surface.

"It was an accident, I didn't mean for it to happen "
Because you tripped over and your penis ended up somewhere it shouldn't?

"If you act/dress like a whore, you'll be treated like one."
Everyone, yes even prostitutes, have the right to say no. To borrow from a Pat Booth article that was printed a year or so ago if a known philanthropist is mugged, we do not assume that because he/she has give money away in the pas they forfeit their rights to say no giving away their money in the future the same should hold true for rape.

"She went back to the room/said yes to doing sexual act A, so she knew what she was getting herself in for"
Even if you buy the idea that most people know that they shouldn't go back home/to hotel room with someone they just met unless they want to have sex, what sexual acts are being consented to might be different. Like for instance just because a woman chooses to go back to a hotel room to have sex with two guys, doesn't mean she okayed to have sex with others nor have half the team watch.

"She didn't fight back, she seemed to enjoy it"
Rape is about consent. Does consent mean the absence of a 'no' or the presence of a 'yes?' How about instead of assuming the absence of no means the presence of the yes we start asking questions just to clear it up. And no it doesn't need to be sterile legal documents, try some foreplay. Start your dirty talking/texting before you get back home.

"I was too drunk to know what I was doing"

An excuse that won't get you off a whole host of crimes, try again.

"Everyone's at fault, including the girl involved."
Because by admitting some of the blame but offloading the rest you've thus cleared yourself of any wrongdoing. Nope, try again.

"He's lost his job/family because of this... Let's remember that sometimes the guy is actually the "victim"."
A chain of events that were all due to an earlier decision to rape.

What rape myths make your blood boil?

33 comments:

A Nonny Moose said...

In the case of being raped by someone you know "Why did she get into that situation in the first place?" see: abusive relationships/bad situations, leaving.

"If the police have investigated the matter and won't press charges, then she's gold digging/making a false claim"

"If Woman A has made a false rape claim, Women the world over can't be trusted."

Anita said...

"The Police haven't charged him so it can't have been rape"

Anonymous said...

Tony Veitch was not charged / acused with rape. The way your post is written suggests that he was.

QoT said...

"He's a rugby player, he's got women throwing themselves at him all the time, he doesn't NEED to rape anyone"

closely followed by

"He's a Good [where "good" is predicated on "famous and conventionally attractive"] Guy, he wouldn't do something like that!

backin15 said...

""She went back to the room/said yes to doing sexual act A, so she knew what she was getting herself in for"
Even if you buy the idea that most people know that they shouldn't go back home/to hotel room with someone they just met unless they want to have sex, what sexual acts are being consented to might be different. Like for instance just because a woman chooses to go back to a hotel room to have sex with two guys, doesn't mean she okayed to have sex with others nor have half the team watch.

"She didn't fight back, she seemed to enjoy it"
Rape is about consent. Does consent mean the absence of a 'no' or the presence of a 'yes?' How about instead of assuming the absence of no means the presence of the yes we start asking questions just to clear it up. And no it doesn't need to be sterile legal documents, try some foreplay. Start your dirty talking/texting before you get back home."

I think these two myths are the ones that men need to do some more and deep thinking about. Active consent should be the standard. Possibly, and I'm being cautious with my language here, the myth that men are always up for it, and women are always coy, needs addressing too? Men need to understand that women can and will be clear about their engagement in sexual activities. If you start from that view, then the absence of clear consent should make you stop whatever you're doing.

portia said...

What rape myths make your blood boil?

All of them, pretty much, because they all seem to boil down to the victim's having lost her right of refusal because of how she was dressed or whom she was with or being young and cute and not a virgin or gauging that her best chance for avoiding worse injury is not resisting. There seems to be a certain level of discomfort/dissatisfaction with the very idea that a woman CAN say no. Hence this 'her eyes/miniskirt/name-yer-dogwhistle said "yes"' rubbish.

But it REALLY pisses me off that rape is so difficult to prosecute in common law systems. Civil law systems also have to deal with entrenched misogyny, but at least they don't have to deal with zealous defence representation that depends to a huge extent on that very misogyny. The way we prosecute rape is deeply unsatisfactory, and I don't know how we can improve it.

Moz said...

"If she didn't go to the P*lice until later it's because she changed her mind after the event"

"women can't rape men"/"women don't rape men"

"I was seventh in line, so I assumed the guy in front of me got consent"

I do wonder about the "consent to A, get B" defence... what if she was into souvenirs? Would "he had sex with me so obviously he was ok with me taking a testicle" really work as a defence?

Anonymous said...

"women can't rape men"/"women don't rape men"Yeah, what about the manz?

Anonymous said...

Portia, civil law jurisdictions still have defense counsels and as far as I know they don't defend their clients in different ways.

Also, rape conviction rates are not higher in civil law jurisdictions

portia said...

Thanks Anonymous@7:05, I did not know that. I had heard that prosecutions in civil law jurisdictions were less traumatic for the victim, and erroneously equated that with less adversarial/more successful.

Now that we come to it, is my premise even correct? Is it any better in France or Spain, if you know? Are there ANY better examples to work from?

Anonymous said...

Portia, the main difference is that in civil law jurisdictions the judge undertakes an inquisitorial role and seeks the truth on behalf of the state. In the common law system the judge is an arbitrator and has no power to independently find fact.

Calling it a non-adversarial system doesn't mean there's goodwill all around, simply that the judge has the power to rule contrary to the consensus of the defense and prosecution. In an adversarial system, if the defense and prosecution agree on something, that's the end of it.

But there is certainly nothing to prevent a defense lawyer from calling a rape victim a liar, interrogating them about their behaviour, attempting to belittle their experience or doing the other things that they do to deny the victim agency in the name of defending their client's 'innocence'.

It's certainly not any better in France, Spain, Italy, Germany or indeed most of the world's non-English speaking countries (common law basically being an anomaly confined to the Anglophone world).

There may be an alternative out there - I myself favour putting the onus on the rapist having to prove their innocence, not the victim having to prove theirs - but none have been put into practice.

portia said...

Placing the onus on the rapist is intriguing.

Say, if the accused uses the defence 'it was consensual' then the onus is on the accused to prove it was consensual rather than on the prosecution to prove it wasn't. It also leaves the bedrock 'innocent until proven guilty' principle alone, which I think is a good thing.

Was that the kind of change you had in mind? That seems like a reasonable modification to the status quo.

Anonymous said...

My favourite myth:

"Rape is more common among maori/pacifica communities"

Closely followed by:

"The only way to stop rape is by ending poverty and social inequality"

Anonymous said...
This comment has been removed by a blog administrator.
stargazer said...

sorry anon, this is a serious discussion, and i see what you did there. don't waste time complaining about the deletion, as that comment will also be deleted.

Anonymous said...

Slightly off topic, but think the acid test here and for other equally appalling incidents , ie Clint Rickards et al and the police baton, is to ask what those " gentlemans'" reactions would be if the women / teenager was their daughter. Would they share a beer with the blokes, as after all their daughter "loved it" and of course she gave her consent? I doubt it.

Anonymous said...

Sorry Portia, I tried to respond to what you said but that was the comment that got deleted.

I'm not complaining about the deletion, I just wanted you to know that I'm not declining to answer you out of rudeness.

portia said...

Hmm. Anonymous, I think you're forgetting the possibility of mistaken identity in the case of stranger rape. The Innocence Project in the states has been working to free people wrongly convicted on eyewitness testimony but exonerated by DNA evidence (in addition to other testimony, like alibi witnesses). The victims were not lying, they were just mistaken. This is not uncommon in the case of positive IDs of strangers.

Reversing the onus for the consent argument would cover most current situations of acquaintance rape and stranger rape, since if there is DNA evidence (as there usually is these days), you pretty much have to argue consent. Only in the absence of DNA evidence it would be possible to argue mistaken identity. And I would argue that the burden of proof should be left alone in that scenario, because if the unreliability of positive identification were combined with the onus shift it would be likely to lead to unjust results.

I'm also thinking an incremental change like the consent onus might have a better chance of getting through Parliament than a blanket reversal of innocent until proven guilty in the case of rape (and only rape).

stargazer said...

there was a really good interview on radio nz this morning on mistaken identity, and particularly the role of the police and the way they conduct investigations.

portia said...

I couldn't follow your link, Stargazer. Title of the piece?

stargazer said...

if you go to the "nine-to-noon" page on radio nz national, it's the "eyewitness testimony" interview.

Anonymous said...

Portia, you're right that an incremental change would have a better chance of getting passed through parliament.

But I'm not sure that the sort of arguments a defense counsel would come up with to attempt to prove consent would necessarily be any less degrading and hurtful to the victim than the status quo.

I think the best thing to do is to simply avoid making consent an issue, and take the victim's word for it.

This would still leave men free to prove their innocence through mistaken identity. Incidentally, I haven't forgotten about those cases, but I'm aware of how extremely rare it is for the victim to be mistaken about the identity of the rapist, given that most rapes are perpetuated by people the victim knows. The reason I didn't address them is not because I don't care, it's simply because I regard them as a distraction from the real issue - creating a fair justice system.

portia said...

Stargazer, that was a cool interview.

Anonymous, you're basically saying "If X accuses Y of Z, then Y is guilty of Z because X should be trusted not to lie". How is it any different where Z= rape as opposed to where Z= lying about rape?

That said, I think our positions are actually quite close. What would we be believing the victim about EXCEPT that the sex was non-consensual? And if the burden of proof is on the accused claiming consent, we are starting from the standpoint that the victim is telling the truth. As you say, the defence still has any slimy argument not closed to them to make, but that would always be the case as long as the accused is allowed to mount a defence. And I don't think you're suggesting a Star Chamber.

Anonymous said...

Portia, I agree we are not that far apart, and I would support your ideas in practice at least in the medium term because they would be more likely to be accepted by the powers that be.

The reason I think rape victims can be trusted not to lie about rape is because there is a very strong incentive for a rapist to lie about not committing rape, but no real reason for a rape victim to lie about being raped - given how hellish the situation is, how much shame and harassment they will face, I just can't see why anybody would do that. What would a woman have to gain by lying about being raped?

I can see a woman misidentifying her rapist - although I think this would be very rare - I am simply saying that nothing is to be gained by accusing somebody who has already suffered from the trauma of being raped of lying.

I can see why you would bring up the Star Chamber analogy but this is not about giving unaccountable government types power - it is about giving women who have suffered from violence power.

Deborah said...
This comment has been removed by the author.
Deborah said...

And if the burden of proof is on the accused claiming consent, we are starting from the standpoint that the victim is telling the truth..
.
Very roughly, there are two defences open to a man accused of rape: (1) mistaken identity - it wasn't me; and (2) it was me, but she consented.

(1) has largely been taken out by better forensic and DNA evidence.

W.r.t. (2), when we put together our submission on the sexual violence discussion document, we (i.e. the readers and writers of The Hand Mirror who signed up for it) argued that:

if an accused raises the defence of consent, then the accused must show on what grounds he believed that consent was given, including the steps he took to ensure that consent was given. That is, the burden of proof rests with the person raising the defence of consent.

This simply requires that the person who uses the defence gives proof of it. Presumably, if consent can't be proved, then the charge is appropriate. This will necessarily mean that men must be a lot more careful with respect to their sexual behaviour. We fail to understand how this can be regarded as anything other than a good thing.
.
.
It doesn't shift the presumption of innocence. It just means that a defense of consent has to be proved, not just asserted.

Anonymous said...

On a conceptual level, is consent actually a defence, or is lack of consent an element of the offence? I know it is a fine point, but I think it makes a difference in how we understand who has to prove what. If lack of consent is an element of the offence, then by putting the onus on the defendant to show that there was consent, we are asking the defendant to prove that they are not guilty - we are presuming they are guilty, rather than innocent. If lack of consent is not an element of the offence, does that make sex an offence even where there is consent?

Intuitively, I would agree that it would be preferable for the onus to be on the defendant to show that they took reasonable steps to find out whether the complainant was consenting, but I am not sure how this sits with the presumption of innocence. Is this a situation where other rights are more important? I'd be interested in your thoughts ...

Moz said...

I think the consent argument is solid, but I suggest those advocating it try doing it themselves. Get consent at every step every time *you* have sex. Something that if your partner stands up in court and says they were raped, you think should suffice for a defence.

See, my problem is that I don't think it's as easy as you're making out. So you've either got to demonstrate the above or your system removes the consent defence.

stargazer said...

or moz, you could have a discussion before you start, about what kinds of things you both are comfortable with, what are the no-go areas, what you'd each be willing to try & whether you want to try it at that particular time. yes, it would take some work, but do you really think it's not worth the effort?

just for your interest [trigger warning], i'd refer you to
this post, and particularly the comments thread. it's quite long, and details some horrific experiences. these are women's experiences, and it should not be that way. the only way to change it is to put the onus on people to spend more effort thinking about their relationships and communicating more effectively.

i don't think anyone is saying it's easy. i'd ask you what changes to the law you'd suggest so that women don't have to go through the experiences detailed above.

Anonymous said...

Deborah, I agree that would be a positive step, but I think a lot of the myths we've seen in this thread actually consist of ways that a rapist could try to claim they had consent. 'Oh, she was dressed that way, therefore she consented'.

Or the rapist can flat out lie, and claim that the victim gave consent when in fact she didn't. Which means we are stuck with a his word against hers systems again.

Maybe, if you really don't like the idea of the courts believing a rapist when she says she has been raped, we should think about only allowing women who are rape survivors to be juries or judges during rape trials.

portia said...

Deborah, thanks for linking to that document. I just finished reading it, and it's exactly what I'm talking about, but far more coherently argued.

Anonymous@8:23, I take your point about the lack of consent being an element of the crime, and therefore subject to the innocent-until-proven-guilty principle. But I think it would be analogous to the defamation rule, where one possible defence is for the defendant to prove the truth of the assertion. The onus is not on the plaintiff to prove a negative, i.e. that the assertion is false. Do you see any conflict between the truth defence for defamation and the principle of innocence?

Anonymous said...

Thanks for your response to my post Portia. I think the difference with defamation is that it is a civil action, rather than a criminal offence, so I don't think there is a presumption of innocence. Is that right? I wonder if the only way to deal with the issue is to say that in some situations the right to be presumed innocent should cede to other social interests? But it's a difficult argument to make since the right is such a bedrock element in our criminal justice system.

エレイナ said...

"If a women is raped by her husband it isn't really rape."

How stupid can people get?