Wednesday, May 15, 2013

Sexual violence & the practical presumption of innocence

Includes discussion of rape and childhood sexual abuse.

Sorry to launch back on such a subject, but this is a source of great frustration.

There's a principle in social justice that is important, but sometimes badly worded and often misunderstood. The principle is usually worded something like this:
If someone says that they have experienced rape, we should believe them.
I have written before about the importance of believing people when they talk about their experiences, unless and until you have a good reason not to. This particularly matters when it comes to sexual violence, because our trust can make the difference between a dangerous abuser being allowed to continue, committing worse and worse crimes, and that same person being brought to justice and taken out of circulation, discouraging others who would follow that path.

Yet our society is particularly bad at this. We are skeptical about rape. We are over-anxious about the idea that innocent men* may be subject to false-accusations. Sometimes, our principle is read as
If someone says that they have experienced rape, we should condemn the suspected perpetrator. 
This sits against one of the most important principles in law: a person is to be presumed innocent, until they are found to be guilty. Although this is usually a pernicious misinterpretation, some people actually word it like that. Some people do, for example, believe that we should condemn all the famous men arrested under Operation Yewtree, because they must all have been accused by someone.

There then follows an argument, which pitches the rights of a rape victim against those of a person accused of rape. This is a really big problem, a thorn in the side of any constructive discussion of justice and sexual violence, so I'm going to try and unpack it.

We've moved beyond trial by combat.

In days of yore, if a chap had been assaulted, had his cattle rustle or had someone trample a crop circle in his field on a drunken Saturday night, he would be given a big heavy stick. The person accused of these crimes would be given a similarly heavy stick and they'd be expected to decide the case by fighting it out. People knew it was a very stupid system, even at the time, but they were superstitious about lawyers and saw little alternative.

There is nothing that resembles this in UK criminal law. We have an adversarial trial system, where lawyers actively argue with each other, and sometimes with witnesses (another big issue around justice and sexual violence) but criminal cases do not pitch the accuser against the accused.  The victim of a crime (who may not be accusing anyone in particular) goes to the police. The police investigate. If they find enough evidence, they consult the Crown Prosecution Service, who may decide to take the suspect to trial. It is then the Crown that prosecutes, not on behalf of the victim but on behalf of the state, since a crime against one person is a crime against us all.

Yet so often, when rape and abuse cases are discussed, they are spoken about as if the victim and the suspect are two sides of a naturally ambiguous legal dispute. Folks argue for the anonymity for rape suspects or the removal of complainant anonymity in order to establish parity between the two parties, as if their respective positions can possibly be compared. They cannot.

Anonymity is a very simple issue, so let's clear that up. 

People who report rape and sexual abuse are given anonymity - that is, nobody is allowed to publish or broadcast their name or other personal details - for three very good reasons:
  • Even if we could do away with the colossal stigma, sexual violence effects people in uniquely personal and complicated ways, and should be treated like the most private medical information. Lose anonymity and reporting would plummet.
  • Rape victims are extremely vulnerable to intimidation and coercion, especially when they have been raped by people they know or by people with power and influence. Even without anonymity, many rape victims drop cases because they have been explicitly or implicitly threatened by their rapists and their allies. Lose anonymity and this would be even more commonplace.
  • A rape victim who has reported a rape that didn't result in conviction is more vulnerable to experiencing rape again, and less likely to report another attack. Lose anonymity, and provide rapists with easily identifiable potential victims who are much less likely to report.  
Complainant anonymity is not about making rape victims avoid embarrassment, but is a tool for justice which helps protect fundamentally personal information, makes rape victims more likely to report and follow through the legal process, as well as helping to prevent rape happening again.

Anonymity is not awarded to adult suspects, outside exceptional circumstances (e.g. those involving state secrets), although the police and courts make decisions about releasing names to the media. It would be a particularly bad idea to award anonymity to rape or sexual abuse suspects for two very good reasons:
  • Most rapists have multiple victims, each of who tend to believe that they are the only one. Especially in cases where a rapists has power and influence, evidence around a single instance may not be enough for a conviction. As soon as a name is published, other victims know they are not alone and have the opportunity to come forward and a stronger case is forged. 
(This doesn't mean the media handle such information at all well, and their mistakes can not only permanently damage the reputation of innocent people, they can jeopardise a fair trial and undermine the legal process.)
  • The percentage of reported rapes that result in conviction is rather low. If suspects were granted anonymity, a rape victim would have a choice between effectively awarding their rapist lifelong anonymity on the chance he or she might be convicted, or else side-stepping the legal process and maintaining the freedom to discuss their own experiences in whatever way they saw fit.
Thus, granting suspect anonymity would result in less reporting, fewer convictions and, since rapists would feel altogether safer, a higher incidence of sexual violence.

Presumed innocent until proven guilty does not mean treated as innocent.

When someone is suspected of an offence, they will be obliged to speak to the police and they may be detained in custody whilst being questioned.  If a person is charged for an offence, a court will decide whether or not they should be allowed to be released on bail. Some people - still innocent in the eyes of the law - will be imprisoned for months awaiting trial.

Outside the criminal justice system, there are obvious steps that other people need to take when someone is suspected of a crime, whether the police are involved or not.  As human beings, we observe and listen to folks reactions, thoughts and experiences with other people all the time, and we'd be foolish if they didn't influence our behaviour.

Whether or not the police are involved, there's a big leap between treating a suspected rapist with caution - allowing their alleged victim distance from them in social settings, for example, not leaving them alone with potential victims - and organising a lynch mob.

In fact, there's a difference between believing someone when they say they have been raped and believing an accused person to be a rapist. After all...

The innocence of an accused person and the honesty of an accuser are not mutually incompatible.

Rape victims cannot always reliably identify their attackers, whether it is because they are complete strangers or because alcohol, other drugs or head trauma are involved.  In such cases (when they are taken seriously), the police are likely to question many innocent people; people who drive certain vehicles, people who were at a particular party, people who look a little like the attacker. People are occasionally charged with rape due to straight-forward mistaken identity.

Meanwhile, and especially with childhood sexual abuse, we have issues around memory.

Someone with inconsistent memories is not necessarily a liar.

Imagine someone was abused by her uncle as a child in the 1970s.  Nobody knew at the time, so she buried it in the back of her head.  She never spoke about it, so never called it abuse, and now, forty years later, she doesn't really remember why she doesn't like the uncle she sometimes still sees at family occasions - it's just like a very strong gut feeling. She may have other PTSD symptoms, but as they have been going on since childhood, they are a normal, part of who she is.

Then the news about Jimmy Savile hits.  She reads other people's experiences of abuse which chime with her own.  She sees images and hears descriptions that remind her of that time, of her childhood, accompanied by stories of abuse. Everything she buried so thoroughly has been stirred up.  Memories begin to come back, only in a form that she can actually cope with. If she was abused by a famous man she once met, then she will be validated by a shared experience that she's heard so much about. She can get help. She can even tell her family and friends without breaking anybody's heart or splitting the family. So it comes out like that.

This is not to say that this will be happening a lot, but over hundreds of cases, it will be happening a bit (and the police know this). Many victims of child sexual abuse know exactly what was done to them and by whom, but because it is such a bloody awful thing to happen, usually committed by trusted and influential adults and often kept secret for years, many children's minds produce (or are guided towards) more palatable versions of events.

Sometimes, something like this can happen when adults are raped.

There is only room for one overarching principle for lay folk and it's not "Innocent until proven guilty"

We have no moral obligation to remain impartial - we can't police our instincts and opinions, only choose what to do about what we believe.  We have no moral obligation to presume that a person is innocent, until they are proven guilty. We have no moral obligation to believe a story which does not ring true to us. But...

We do have moral obligations around what we say and do. 

To tell someone who has been raped that they are lying about their experience is obviously a tremendous and wanton act of cruelty. It discourages reporting, it discourages victims from confiding in others, let alone pursuing justice and it makes the world a much safer and more comfortable place for rapists.

Whenever someone expresses doubt about a specific rape or reported rape in general, you run a very high risk of doing the above. In a public forum, you can guarantee that's what you're doing. This doesn't mean that folk can't defend an accused person's character (that's fine) or talk about false-reporting, but we absolutely have to take steps with language and generalisations to make sure that rape victims know you're not talking about them. These steps are rarely taken; protestations that a man is innocent almost always hinge on a defamation of the alleged victim's character and discussions of false reporting make sweeping statements where anyone but the perfect victim (nun held at knife-point by stranger) could feel discredited.

This isn't just about people's feelings, it is about justice and crime prevention.

Meanwhile, there's precisely nothing to be gained from letting a false-accuser know you're onto them. Anyone who reports a rape knows that some people will not believe them - the same must apply to those who haven't been raped.  So there's really nothing to be gained from that, and everything to be lost.

See Also: Some Things We Could Actually Do To Prevent Rape

This is too often about protecting men and masculine sexualities.

In fiction, only very evil men commit rape. Good men are often sexually forceful, but that's always somehow okay - because they're good! Men themselves cannot be raped, because sex is always a good thing for them. Our entire culture is invested in masculine sexuality - particularly heterosexuality - being a great thing, a source of both humour and pleasure, an expression of desire, love and all that is good about being a man.  And to the greatest extent, it is. It's no more magical than the sexualities of other genders, but most things most people do sexually are about pleasure for all concerned. Sex is wonderful. Sexual organs are both amusing and beautiful, according to context. Sexual desire doesn't hurt anybody, and most people's sexual behaviour is entirely positive, often loving, sometimes creative and occasionally procreative.

Unfortunately, bad behaviour is not as exceptional as our culture would like to think. Our culture is automatically skeptical about rape, and especially skeptical about the idea that a likeable man, or even a man who doesn't have any scales or horns in view, could behave monstrously in this way. Some people call this skepticism Rape Culture, and it certainly runs deep.

If a close friend or family member of mine was accused of rape, I would be instinctively skeptical.  I would need an awful lot of proof (although I wouldn't seek out the alleged victim and demand it from them). In some cases, I'd perhaps never believe it to be true.  This is not a bad position to be in.

However, if you have the same instinct about almost any story of rape, then that's probably programming.  We grow up with that.  We learnt that rape is a terrible crime and being falsely accused of such a crime is very nearly as bad.. But rape is rare and false accusations are perceived as so very common that the subject should be raised every time sexual violence is mentioned.

This is borne out by responses to Operation Yewtree. Despite the fact that the police and Crown Prosecution Services have acknowledged that Jimmy Savile was a prolific paedophile who should have been put away long ago and the confessions of Stuart Hall to various acts of child abuse, I have seen it said that:
  • This is a "Celebrity Witch Hunt"
  • These historic allegations are driven by compensation culture. These people just want money.
  • These historic allegations are driven by attention-seeking behaviour. 
  • The 1970s were a less politically correct time, when all men committed a variety of sexual crimes and nobody minded - we can't judge what happened then by the standards of today!
  • Too much time has passed - if these allegations were true, we'd have heard of them by now.
  • Too much time has passed for any of this to matter to anyone. Victims need to get over themselves.
  • The entire inquiry is about some kind of twisted sexual purity movement that seeks to persecute any innocent rich old man who happened to molest a nine year old in his younger days. Lower the age of consent! Remove complainant anonymity! Problem solved!
(This post is just about the possibility of false accusation; we're equally programmed to seek out extenuating circumstances on behalf of a rapist: What was she wearing? Was she drunk? Was she flirtatious? This is stuff that many of us have had to unlearn.)

But this is sometimes just about power.

There is great power to be derived from treating a vulnerable person, desperate for validation, with doubt and disbelief. Way too many people get a kick out of that, whether they are expressing doubt to the face of an individual victim, or expressing doubt in a public forum or a newspaper column where they know victims will be reading.

Sometimes, people really do express disbelief because they want a slice of the power a rapist has. Sometimes, it is alarmingly obvious what they're doing.

* The reason this is mostly about men being accused of rape when women may also commit rape and be accused of it, is that we don't take women rapists seriously at all. If a woman is accused of rape, we don't worry about her reputation being damaged - in fact, when female teachers have been convicted of raping their male pupils, there are comments of "Wish she was my teacher when I was at school." and so forth. All this is terrible, and all of it is interconnected. Our terrible attitudes to rape - of whoever, by whoever - come back to our expectations of masculine and feminine sexuality.


Millitoria said...

I really hate the 'if you didn't report it at the time it didn't happen' and 'if it happened so long ago you should be over it' arguments. There are so many reasons why people don't report rape and sexual violence at the time, or at all for that matter. And just because something happened a long time ago doesn't mean it doesn't still affect you.

I think this is really well written and considered article. Thanks so much for writing it and sharing it.

Anonymous said...

Dearest Goldfish
You are part of my process. Blessings.
Oh - and so glad about Mr Goldfish !!!
with love from Sally

The Goldfish said...

Thank you both.

Thanks Militoria, this does seem a bizarre problem, especially as far as the work of Operation Yewtree is concerned - the whole point is that these victims were children or very young adults, and not just that but very vulnerable and bewildered ones, often with nobody to fight their corner.

Good to see you around, Sally!

Pvblivs said...

Suspects should be afforded anonymity (and not just in cases of rape.) First off, parading a suspect around the media for weeks or months before a trial as "guilty" is likely to prejudice a jury pool. Also there is another factor. False accusers can come out of the woodwork (particularly if there is the possibility of a payoff.)

The Goldfish said...

Thanks Pvblivs,

I think the post covers why I would disagree with you on those points. While false allegations certainly do happen, with all crimes, I am particularly skeptical that financial gain is likely to be a common motivation with sexual abuse accusations given that (a) these crimes are notorious difficult to prove and gain convictions for (and without a conviction, there's no question of compensation) and (b) there is an immense personal social cost of being identified as a victim of sexual violence, whether you are believed or not, even if your name is kept out of the press. This doesn't mean that false allegations don't occur, but the idea that people do that for money seems especially unlikely - even if someone was made of stone, there are a million other ways they might attempt to make money out of compensation or insurance which would be both more straight-forward and more likely to succeed.