The responsibility of jurors in “no means no”

Share on Tumblr

The Guardian has taken an interesting slant on an old issue, but even the title they chose bothers me: “In rape cases, ‘no’ means ‘no’ to everyone except the British public.” Everyone but the British public? Really? I didn’t think so, either. And the article goes on to treat comprehension of what “no” means as the cure-all to sexual assault trials that don’t end satisfactorily for victims. I wish any of it were this simple.

The article reminds us how years ago, judges and the police tended to blame rape victims for provoking their own rapes, thereby taking all responsibility off the shoulders of the rapist, who obviously couldn’t help himself in the face of such overwhelming temptation as his victim, you know, being right there on the same planet with him. Now, the Guardian claims, police and judges have improved, but it’s jurors who still think sometimes it’s your own damn fault you got raped. The author seems to believe juries still largely consider it more important to hold women accountable to standards of propriety than to hold men accountable for their own actions, when it comes to sexual assault.

The article is not very well edited (I am the queen of bad editing, so I should know). It’s difficult to sum it up in any meaningful way (believe me, I just spent the last forty minutes trying, to no avail), but it’s a quick read. I find the article’s premise unpersuasive. I do think the police and judges have improved their handling of these cases, generally, but not to the extent that we should be satisfied and switching all our concerns to uninformed jurors – the problem remains systemic in our culture, which tends to hold women accountable for all activities involving sex organs.

The comments are more interesting, in that they suggest what potential jurors may actually be thinking:

It is very very hard to know who is telling the truth much less know beyond a reasonable doubt. I have also yet to hear convincing arguments why the standard of proof for THIS crime should be changed (why not murder too)?

In light of that, it is obvious we need to educate women on how to protect themselves more. That means saying that getting drunk around men you don’t trust completley is dangerous. We warn people about getting into unlicensed cabs. No, this doesn’t mean women who flirt and get drunk deserve rape. But women who do are in more danger. We need to educate women on how to stay safe.

The second paragraph is based on the usual myths: that strangers assault women more often than people known to the victim (the opposite is true), that any human can ever really know for sure another human is trustworthy (sadistic people know how to feign empathy and conscience until they’ve got victims where they want them), etc. But the first paragraph is absolutely right. Not all sexual assault cases boil down to two conflicting stories, but when they do, it is difficult to consider witness testimony as evidence “beyond reasonable doubt.” On the surface, that’s just plain rational.

What I believe is missing from this multi-decade international conversation is the simple question: why would a person not only lie about consensual sex being non-consensual, but also put herself through the trauma of a trial unlikely to be won? What’s her motive for making all this up? Without that motive, have we any reason not to take her word at face value?

I think this is where the real prejudice comes in: we have a long-standing cultural belief that less privileged people are obsessed with tearing down more privileged people, to the extent they would make great personal sacrifices to accomplish their acts of destruction. We like believing this more than we like believing that one of the entitlements of privilege is to treat the less privileged like your belongings, and then toss them aside.

Consider that most men wrongly convicted of rape are men of color who have often been misidentified by victims pressured by law enforcement to say they’re more sure of identification than they really are (and also by other witnesses who have their own motives for wanting the defendant behind bars, which has nothing to do with the sexual assault in question). Because they are no more privileged than the women who accused them, juries can’t imagine why she’d be lying, and happily convict (and of course, straight-up racism plays a part here, too). Then white middle class (or higher) men moan endlessly on websites about how women make up stories about rape just to hurt them, when white middle class men are rarely convicted rightly, let alone wrongly, of rape.

Sure, juries are often getting it wrong. But I don’t think it’s all due to judging women for not being little ladies. Privilege is all about making less privileged people accountable for the actions of more privileged people. To view a sexual assault case in this light, one need not think that girls who aren’t prudes are “asking for it” to still reach the conclusion that she is responsible for what occurred, or possibly lying about it.

And that, I think, is where any perceived difference between law enforcement improvement and jury improvement is coming from. Law enforcement personnel can hobble their personal prejudices by simply accepting that their job is to collect evidence and put it through certain processes, and many individuals have successfully learned to do this. Jurors, however, are not in a profession where they receive mentoring and long training – except from a culture that teaches them all privileged people are automatically Nice Folks, and accusations against the privileged are automatically suspect.

Comments

  1. The Other Patrick says

    Here’s a related, very sad post: a police officer stalks a stripper, stops her car on an isolated road, and ejaculates on her. He is let go despite all evidence to this being premediated, and actually happening, because hey, she’s a stripper and a very erotic woman.

    Gah.

  2. Raeka says

    If you look in the comments of that article, too, you might see that the lawyer defending the police officer (the one who made the statement that the stripper ‘got what she wanted’) seems to have been having troubles of his own with his daughter:

    The lawyer Stokke acted differently when his “overtly sexual” daughter became the object of unwanted attention. You would think he would be more sympathetic.

    http://deadspin.com/264051/how-to-detract-attention-from-your-attractive-teenage-daughter

    I’m rather curious about whether the issues with internet attention to his daughter happened separately from the case, or as a result of it. I notice that articles talking about his daughter’s internet issues completely fail to mention it.

  3. Anemone says

    “Oh, but he’s a nice boy and he didn’t mean to rape you. You shouldn’t have gotten in his way.”

    I think the comparison at the beginning of the article, about rape versus robbery, is a good one, but then people going around assuming the rapist *wants* to hurt the victim every single time, and they can’t believe that. (And it might not always be true. Rapists may simply not care one way or the other most of the time.)

    Sometimes the rapist is like someone in a big truck who dents your car without even noticing, or hurts someone in a hit and run by mistake, because they’re so bloody big and powerful they can do a lot of damage without intending it. It’s still misogyny (and rape) if you don’t even care enough to notice if there’s consent or not. I mean, not caring about consent is like driving drunk!

    More public education needed. Still.

    If only misogyny weren’t so multifaceted. It would be so much easier to explain.

  4. says

    @Other Patrick and Raeka, that’s so creepy. All of it.

    @Anemone, yep, that’s a lack of empathy, and I would bet more violence is caused by it than by actual maliciousness or hate – partly because it takes at least some lack of empathy to ACT on hate. Privilege works in tandem with lack of empathy: even kind, principled people are aware, however unconsciously, who they can “get away with” tormenting and who they can’t, because society is set up that way. That’s why there’s some old truism that says you can’t really say someone is “nice” until you see how they treat a waiter (or some other person in a position of subservience).

  5. Ray says

    Hm, that post got screwed up somehow. Here:

    In light of that, it is obvious we need to educate women on how to protect themselves more. That means saying that getting drunk around men you don’t trust completley is dangerous.

    Next time a man gets completely wasted and robbed on his way home, does this mean that instead of tracking down the thief, we tell him not to make such bad decisions? *sigh*

  6. says

    Ray, that would follow, wouldn’t it? It’s interesting how we warn people to lock their cars and don’t leave anything tempting visible through the windows, and then roll our eyes when they leave OBVIOUS SHOPPING SPREE in the backseat and get broken into, but we don’t suggest the criminal was entitled to break in because they left tempting stuff visible.

    Why do we fail so very badly at making the same distinction when we feel rape victims have taken stupid chances? I can’t think of any other crime where we think the victim’s lack of foresight or savvy decisions mitigates the criminal’s responsibility, let alone negates it. It’s a separate issue.

  7. Scarlett says

    Jenn, I meant to say this sooner; a journo professor of mine told me a story about how he often found the way a person treats their pets to be a good indication of their character. (In his case, a politician known for being an all-around good guy who liked to kick his dog). Except dogs can run away. Service staff often have to put up with people’s crap long after it becomes illegal.

  8. Fraser says

    Do you have a source for that statement that most inaccurate charges of rape involve non-white men? It’s something I know I’ll want to throw into an argument on this topic someday.

  9. says

    Fraser, as DNA testing has improved and we re-examine old convictions, cities across the US are finding that African-American men are disproportionately convicted of rapes they didn’t commit, based on false witness testimony.

    http://www.blackperspective.net/index.php/260/ – “But while 29 percent of those in prison for rape are black, 65 percent of those exonerated of the crime are.” Notes that interracial rape is actually uncommon. It also makes an interesting point: that sometimes MEN and other associates who have it out for the accused provide witness testimony that he committed a sexual assault because they, not the victim, have an agenda to get him behind bars.

    http://realcostofprisons.org/blog/archives/2007/07/study_of_wrongf.html – study shows that black men accused of raping white women have a much greater change of false conviction.

    It’s my own extrapolation that the issue is one of privilege, but it’s logical.

  10. says

    I come fresh from reading IBTP on the endemic and rampant scaremongering how vulnerable women are to assault wherever they live or breathe. So the very notion that we need to “educate women” (the poor ignorant saps) about how to stop men raping them is just gob smackingly preposterous – both because there’s nothing women can do to stop men raping them, and because duh, they aren’t allowed to forget to be afriad, very afraid, as it is.

    The very idea that someone may actually say that they actually believe that there are still actually women out there who actually need to take even more actual precautions (on top of all the usual tower-bound damsel shit of not walking home alone in the dark or opening the door to strangers) is almost even more shocking though, because it speaks to the lengths of self deception people will go to in order to protect their cosy little vision of how the world and the patriarchy really function.

    Newsflash, Helpful Commenter: women live in fear already. This is a feature, not a bug.

  11. Fiona says

    Wow, that is a really interesting take on the issue, I hadn’t thought of it from that perspective before.

    And I bet it translates to aboriginal men in Canada, lower-income men everywhere, probably religious minorities somewhere….

    Now I wonder how many of the women involved in the wrong convictions were white and middle or higher class.

  12. says

    Fiona, if I’m correct in thinking it’s about privilege, then it would translate to any less privileged group, relative to his society.

    Now I wonder how many of the women involved in the wrong convictions were white and middle or higher class.

    I haven’t found any numbers on that, but the studies I linked in my last comment (and now in the article as well) talked about how unusual it actually is for black men to rape white women, and that led me to think the victims typically were white women. And I would guess middle class, too.

  13. Raeka says

    Why do we fail so very badly at making the same distinction when we feel rape victims have taken stupid chances? I can’t think of any other crime where we think the victim’s lack of foresight or savvy decisions mitigates the criminal’s responsibility, let alone negates it. It’s a separate issue.

    All I can put this mindset down to is the rape culture we live in, and the insidious entitlement of men to womens’ bodies –absolutely nowhere do you see any sort of meta-messages telling you that if that some person is flaunting their wealth, you’re entitled to take some.

    For example, apply the usual ‘evidence’ that a woman ‘wanted it’ to a mugging case: say a person got intoxicated, then wandered through a bad area with dollar bills hanging out of their, and got mugged. Everyone agrees it was a stupid thing to do on the part of the victim, but the blame for the act still falls on the mugger.

    Also, perhaps, the confusion comes from the fact that people think of rape as primarily sexual, and only secondarily as an assault; the fact that people ‘want sex’ is entirely unsurprising, but no one would try to argue that a person wanted to be mugged.

    On a slight tangent: in some ways it seems people using this concept of comparing womens’ bodies to that of material goods to argue that women need to protect themselves more by dressing/acting ‘appropriately’ are kind of contradicting themselves. (Of course, this is entirely ignoring the issue of rape-as-property-theft being a horrendous metaphor.) If we have in our culture a very clearly defined set of morals surrounding property theft (mugging a drunk man stumbling through a bad neighborhood with dollar bills hanging out of his pockets is, while a stupid move on the part of the victim, still the fault of the perpetrator) then shouldn’t rape-as-property-theft of the woman be just as abhorred? Or rape as theft of the woman’s male relatives?

    It almost seems like people view it as okay to ‘steal’ from women (who are exempt from this universal reverence of the right to your own property) but then turn around and castigate them for failing to protect that ‘property’…? I dunno. Are we women people, or aren’t we?

    Argh. I’m not sure if I’ve explained this clearly or not. I’ll keep checking back for confused replies.

  14. says

    On a slight tangent: in some ways it seems people using this concept of comparing womens’ bodies to that of material goods to argue that women need to protect themselves more by dressing/acting ‘appropriately’ are kind of contradicting themselves. (Of course, this is entirely ignoring the issue of rape-as-property-theft being a horrendous metaphor.)

    It is a huge contradiction, and the only way I can make sense of it is to speculate that as women became more independent, this was viewed as a rejection of the chivalrous system in which women depended on male caretakers for protection. Because we had men’s protection and rejected it, some people see us as ungrateful, and figure if they leave us to the tender mercies of rapists long enough, we’ll come running back to the arms of our fathers and husbands. I don’t mean this is consciously going on in anyone’s mind – I see it more as a cultural meme.

    Of course, what’s even more wrong with this logic than the logic itself is the assumption, against all evidence to the contrary, that our fathers and husbands were *always* better than the potential rapists Out There In The Big Bad World. If you’re being harmed at home, your chances of being harmed there are 100%. At least in the Big Bad World, they’re considerably less than that.

  15. makomk says

    This is a truly odd Guardian CIF piece. For a start, they’re using conviction rates for rape cases that go to court as a sign that the juries are the issue, on the basis that the Crown Prosecution Service only takes solid cases to court. That’s just not true when it comes to rape – there’s pressure on the CPS to prosecute rape cases even when they don’t think they’ll win. (The official Government studies argue the opposite of this piece – that the problem is the police and CPS not following through often enough.)

    Also, Julie Bindel’s “the last principled feminist in England”? That’s a scary thought.

  16. SunlessNick says

    What I believe is missing from this multi-decade international conversation is the simple question: why would a person not only lie about consensual sex being non-consensual, but also put herself through the trauma of a trial unlikely to be won?

    That’s a question I like to ask. The amount of crap a rape accuser faces – even from people who believe her and say they’re on her side – demands the question of why she would put herself through it.

    For example, apply the usual ‘evidence’ that a woman ‘wanted it’ to a mugging case: say a person got intoxicated, then wandered through a bad area with dollar bills hanging out of their, and got mugged. Everyone agrees it was a stupid thing to do on the part of the victim, but the blame for the act still falls on the mugger.

    And they usually find some time other than the immediate trauma and any criminal trial to say the victim was stupid.

    Also… Imagine applying the same logic to a mugging story: could you imagine a show about a mugging making the victim discover a charitable streak they never knew they had; or one about someone falsely accused of a crime (rape or otherwise) really liking it because it makes them feel strong (and/or manly if it’s a him) to be described so?

    It almost seems like people view it as okay to ’steal’ from women (who are exempt from this universal reverence of the right to your own property) but then turn around and castigate them for failing to protect that ‘property’…?

    As if the woman is not the owner of her body, but its janitor or doorkeeper, who gets to use it when no else needs it, but is failing in her job if it’s hurt (and as if that consituting her being hurt were an afterthought).

Trackbacks

  1. [...] even when you get a good cop, the system and society itself is really, really, really really, [...]

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>

Notify me of followup comments via e-mail. You can also subscribe without commenting.