In the last five years rapes reported to police have risen by 65%; a startling result of the lessening stigma of being a survivor, and the rise of the #MeToo movement allowing people, especially women, to speak more freely about their experiences. However our legal system, and legal systems globally, have failed to keep up. In the same time period the proportion of reports actually reaching prosecution has halved with only 5% of rape cases reported actually being referred to prosecution in 2019.
Looking at the figures alone it’s obvious that our criminal justice system is simply not suited to the needs of sexual assault survivors. The police are often doing their best, but see no point in submitting survivors to the trauma of a trial if there is a low likelihood for prosecution. In cases like this, of one person’s word against another’s, it is almost impossible to combine the legal procedure of “beyond reasonable doubt” with the moral conviction of believing alleged victims of sexual violence. However even beyond this, I would argue that our legal system is needlessly punishing for survivors, as well as stunningly ineffective at prosecuting assaulters. For example, the rate of false accusations among sexual assault cases is actually the same for other crimes, below 10%, and yet there is a pervasive myth of false accusations being the norm.
The adversarial style of court cases naturally means that each side constructs different narratives as to what occurred during the time period of the alleged crime, which reinforces the “my word against his” dilemma, especially in a culture that has a tendency to believe men over women. However, even more seriously, within our patriarchal paradigm, it is incredibly easy, and often a successful strategy, for the defence to construct narratives that fit sexist stereotypes. Obviously not all sexual assault cases are men attacking women, but they make up the vast majority, allowing the defense to appeal to underlying biases and gendered assumptions.
For example if the accuser is sexually active, or goes out regularly, defence teams trawl through her past and play on ideas of promiscuity and slut-shaming, insinuating that women with sex lives would consent to any man that asks. Conversely, if a woman is assaulted by someone she knows, the defence team attempts to show a close relationship with her assaulter, as if to suggest the survivor automatically gave consent. This also plays into the dangerous stereotypes that most assaults are committed by strangers in dark alleyways when the majority are actually by people known to the victim.
A real-time example is the trial of Harvey Weinstein, who has been accused of multiple sexual assaults over a long time period, and whose crimes have followed a predatory pattern. Yet his lawyers are able to play on the sexist gold digger trope by arguing that it was in fact Weinstein’s accusers who wanted something from him, using their bodies as leverage for influence. These women have already faced ruined careers and vitriol for their testimonies, and yet here their convincing accusations are being negated again.
Not only is this unjust, it is also incredibly damaging for the survivors involved; not only are they forced to relive a traumatic experience, but they have their entire life turned against them, and their story denied, worsening the already high stigma and unnecessary guilt felt by survivors. All of this is simply scratching the surface of why this process is structurally unsuited for its purpose, without even mentioning other factors such as a typical lack of definitive forensic evidence, the complicated influence of alcohol and drugs in many incidents, memory loss associated with traumatic events and that members of the public, who themselves make up the jury, often have limited understandings of what truly constitutes consent.
Now I fully understand that due process is essential, and the principle of innocent until proven guilty is not one to abandon in a hurry. However it is clear that our current system for trying sexual assault is not only traumatising victims, but simply not doing it’s job – when the police only refer 5% of cases to be prosecuted justice is not being served. So what are the alternatives?
Many suggest increased visibility of the civil courts, where the claimant only has to provide evidence that the crime committed is “in the balance of probability”, and therefore seen as “likely” rather than beyond reasonable doubt. This is helpful for many as beyond reasonable doubt is often impossible to prove with sexual assault. This may be reductive though, as it still does not rectify the structural issues within our criminal justice system. Another idea is separate courts – as sexual assault is such a common yet complicated issue, the creation of separate courts involving specialists and separate procedures does make sense.
This may sound radical, but it is not a new idea. In Ontario there are already separate courts for mental health cases, drug-related cases and for domestic violence. A final, immensely radical practice, and one which may not suit all survivors, is that of restorative justice. This is the concept of bringing together the people harmed with those responsible in order to find a positive way forward. This supposedly gives victims the chance to demonstrate the impact of the crime and receive an apology, as well as increased understanding and closure.
A major aim is to hold offenders to account and to help them change their beliefs. In my opinion, this is exactly the kind of thinking needed with an endemic social problem like sexual assault, which stems not only from individual flaws, but also from our culture of gender inequality. Restorative justice has significant potential in decreasing the likelihood of repeat offending and often allows both parties to find closure. I would recommend watching the thought-provoking TED talk by Thordis Elvira, who was raped in 1996, and started her own process of restorative justice with her rapist by sending him a letter. They have now written a book together.
Restorative justice is certainly not for everyone, and I’m not suggesting it replaces our criminal justice structure, however the government clearly needs to commission an investigation into alternative systems to make prosecuting assaulters more effective, as well as less traumatic for survivors. The system we currently have seems to criminalise the accusers more than the accused and meets few aims of a justice system – assaulters go unpunished and unreformed, and victims receive no remuneration. It is time to be radical and pave the way for a modern approach to sexual assault.
Image: Wolfmann via Wikipedia Commons
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Rape prosecution: why radical change is an imminent necessity
In the last five years rapes reported to police have risen by 65%; a startling result of the lessening stigma of being a survivor, and the rise of the #MeToo movement allowing people, especially women, to speak more freely about their experiences. However our legal system, and legal systems globally, have failed to keep up. In the same time period the proportion of reports actually reaching prosecution has halved with only 5% of rape cases reported actually being referred to prosecution in 2019.
Looking at the figures alone it’s obvious that our criminal justice system is simply not suited to the needs of sexual assault survivors. The police are often doing their best, but see no point in submitting survivors to the trauma of a trial if there is a low likelihood for prosecution. In cases like this, of one person’s word against another’s, it is almost impossible to combine the legal procedure of “beyond reasonable doubt” with the moral conviction of believing alleged victims of sexual violence. However even beyond this, I would argue that our legal system is needlessly punishing for survivors, as well as stunningly ineffective at prosecuting assaulters. For example, the rate of false accusations among sexual assault cases is actually the same for other crimes, below 10%, and yet there is a pervasive myth of false accusations being the norm.
The adversarial style of court cases naturally means that each side constructs different narratives as to what occurred during the time period of the alleged crime, which reinforces the “my word against his” dilemma, especially in a culture that has a tendency to believe men over women. However, even more seriously, within our patriarchal paradigm, it is incredibly easy, and often a successful strategy, for the defence to construct narratives that fit sexist stereotypes. Obviously not all sexual assault cases are men attacking women, but they make up the vast majority, allowing the defense to appeal to underlying biases and gendered assumptions.
For example if the accuser is sexually active, or goes out regularly, defence teams trawl through her past and play on ideas of promiscuity and slut-shaming, insinuating that women with sex lives would consent to any man that asks. Conversely, if a woman is assaulted by someone she knows, the defence team attempts to show a close relationship with her assaulter, as if to suggest the survivor automatically gave consent. This also plays into the dangerous stereotypes that most assaults are committed by strangers in dark alleyways when the majority are actually by people known to the victim.
A real-time example is the trial of Harvey Weinstein, who has been accused of multiple sexual assaults over a long time period, and whose crimes have followed a predatory pattern. Yet his lawyers are able to play on the sexist gold digger trope by arguing that it was in fact Weinstein’s accusers who wanted something from him, using their bodies as leverage for influence. These women have already faced ruined careers and vitriol for their testimonies, and yet here their convincing accusations are being negated again.
Not only is this unjust, it is also incredibly damaging for the survivors involved; not only are they forced to relive a traumatic experience, but they have their entire life turned against them, and their story denied, worsening the already high stigma and unnecessary guilt felt by survivors. All of this is simply scratching the surface of why this process is structurally unsuited for its purpose, without even mentioning other factors such as a typical lack of definitive forensic evidence, the complicated influence of alcohol and drugs in many incidents, memory loss associated with traumatic events and that members of the public, who themselves make up the jury, often have limited understandings of what truly constitutes consent.
Now I fully understand that due process is essential, and the principle of innocent until proven guilty is not one to abandon in a hurry. However it is clear that our current system for trying sexual assault is not only traumatising victims, but simply not doing it’s job – when the police only refer 5% of cases to be prosecuted justice is not being served. So what are the alternatives?
Many suggest increased visibility of the civil courts, where the claimant only has to provide evidence that the crime committed is “in the balance of probability”, and therefore seen as “likely” rather than beyond reasonable doubt. This is helpful for many as beyond reasonable doubt is often impossible to prove with sexual assault. This may be reductive though, as it still does not rectify the structural issues within our criminal justice system. Another idea is separate courts – as sexual assault is such a common yet complicated issue, the creation of separate courts involving specialists and separate procedures does make sense.
This may sound radical, but it is not a new idea. In Ontario there are already separate courts for mental health cases, drug-related cases and for domestic violence. A final, immensely radical practice, and one which may not suit all survivors, is that of restorative justice. This is the concept of bringing together the people harmed with those responsible in order to find a positive way forward. This supposedly gives victims the chance to demonstrate the impact of the crime and receive an apology, as well as increased understanding and closure.
A major aim is to hold offenders to account and to help them change their beliefs. In my opinion, this is exactly the kind of thinking needed with an endemic social problem like sexual assault, which stems not only from individual flaws, but also from our culture of gender inequality. Restorative justice has significant potential in decreasing the likelihood of repeat offending and often allows both parties to find closure. I would recommend watching the thought-provoking TED talk by Thordis Elvira, who was raped in 1996, and started her own process of restorative justice with her rapist by sending him a letter. They have now written a book together.
Restorative justice is certainly not for everyone, and I’m not suggesting it replaces our criminal justice structure, however the government clearly needs to commission an investigation into alternative systems to make prosecuting assaulters more effective, as well as less traumatic for survivors. The system we currently have seems to criminalise the accusers more than the accused and meets few aims of a justice system – assaulters go unpunished and unreformed, and victims receive no remuneration. It is time to be radical and pave the way for a modern approach to sexual assault.
Image: Wolfmann via Wikipedia Commons
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