Collateral Damage Part 1. How being assaulted can make you a criminal.

[emanix]

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Extended Title: Collateral Damage - How certain members of society are disadvantaged and/or criminalised by laws intended to protect. - Part 1. How being assaulted can make you a criminal.

I had been planning to present an essay on this topic later on, after I'd put up OpenCon follow-ups (they're coming!) and I still intend to. At the rate I am coming up with new examples, it may turn out to be several, possibly even a book, chaos save us. However, an article on the BBC News site was brought to my attention this afternoon that literally made me feel nauseous.

Now, first off I am going to state very clearly that a false allegation of rape is a serious crime, and anyone taking such an accusation through to court should be dealt with seriously – if proven beyond reasonable doubt that the allegation *is* false.

Imagine, however, you are a woman in an abusive relationship. For some of my readers I'm sure this may be all too easy, for others – just try. Now imagine that you are married to a partner who becomes violent, abusive, and rapes you, not once but several times. You call the police for help, and initially they are supportive. You begin court proceedings against the man you used to love.

Now you are a woman battling against the crazy ambiguity of abusive relationships – did that really even happen? Is my imagination, my memory playing tricks on me? He's not really like that... Did I really, secretly, in my heart of hearts want it that way? Did I miscommunicate? Was it, in fact, really all my fault? And if it was all my fault, can things go back to being the way they used to be, loving and happy... and he's so gentle and loving afterwards, perhaps he's really learned this time... perhaps I can do something different...

And now you are a woman learning how biased the court system is against convicting for rape anyway, in a country with a conviction rate of just 6% of reported cases, less where it's one person's word against another, let alone marital rape, in a society where many don't support the view that a woman has a right to say no even to her legally wedded husband.

Now throw in a little witness intimidation, let's say your violent now ex-partner is threatening you, demanding that you withdraw the charges, and his family, and his friends are joining in. There's a smear campaign against you, people you thought were friends are suddenly silent. People you thought you could rely on are backing away, turning silent. Support is hard to find. Hell, even without the threats of violence, the gossip, the uncomfortable silences, the awkwardness when you walk in the room... it's pretty hard to take.

Now, imagine – just imagine – you try to stop the process. You want to stop the gossip, the threats, the smear campaigning. You're struggling with housing, living in a shelter, you've found a job but can't afford to take the time out of work to attend court, never mind having to relive the trauma of the whole relationship in front of a room full of strangers who will pick apart every aspect of what you tell them, and who will imply that you're a slut, a whore, a liar. You just want it to go away as though it never happened, and you start to realise that going to court is unlikely to achieve that.

You try to stop the process, and you can't.

The threats, the trauma, the sheer weight of being dragged through court proceedings, they won't go away. Unless... were you really telling the truth? With a little sneer, the kind policeman who has been looking after you through the process begins to look less kind. He begins to imply that perhaps you made it all up after all. Are you one of those women, the sort that make false rape allegations, who mess with the lives of sweet, innocent, blameless men? A liar. A conniving, evil bitch. But over that horizon, at the risk of seeming like that sort of woman lies something that looks like peace.

So you lie. You say it never happened. Anything to get out of the system and just get on with your life... They'll leave you alone now, right?

Wrong.

UK law on rape and violent assault leave no room for ambiguity. No space for 'it happened, but I don't want to press charges'. Either it happened, and you are committed to the trauma of the court process, or it didn't happen, you are lying, and liable for a jail sentence over what the police will decide either to call a fraudulent allegation or a fraudulent retraction.

Let's replay that bit: whatever your gender, if you are in the UK and report a rape or assault to the police, and then wish to withdraw the claim for whatever reason, you are open to being jailed.

Way to go legal system! So now it's a lose-lose situation for anyone who speaks to the police about having been abused. If you find yourself in this situation, without being able to see the future, you must be 100% certain that you are prepared to go through the indignities of the legal system, no matter what the cost to yourself, before you speak to the authorities. Yet, if you hesitate, you run the risk of losing momentum on your case if you later decide you are able to take it forward. Not only do you have the nightmare of the crime itself to deal with, but also the agony of indecision. Dare I expose myself to the crushing wheels of British 'Justice'?

I didn't. This woman, it seems, did, with horrifying results: link to BBC news article

I don't know a lot more about the case. I know nothing about the people involved, the case history, or the chances of the allegations having been truthful or not. I don't even believe it matters. The point is that a case like this sends a very clear message to anyone who genuinely is in an abusive situation: you're fucked.

- - -

How does a situation like this come about?

In theory, these laws are here to protect us. Historically it was decided that court proceedings where the charge was brought by the victim rather than a representative of state were too open to witness intimidation. The state, after all, cannot be so easily intimidated as a single, vulnerable witness. (Supposedly this removes the point of witness intimidation – in practice, one suspects, it just means that the witness is merely pressured to undermine themselves in court, rather than dropping the case). In a completely dispassionate manner it makes sense. After all, the guilty must be brought to justice! Witnesses must not be intimidated by their attackers! It is, in the law's view, a victim's duty to testify and prevent the attacker from striking again. But at what cost?


How can it be reasonable to force a person who has already been made a victim through a legal process that is long, arduous and has low odds of securing a conviction at best? How can it be reasonable to call that same person a criminal for refusing to have their personal life picked over with a fine-toothed comb by a group of strangers? Having been violated once, can we really believe that having ones personal sovereignty removed again by the courts is a just way to treat someone who has already suffered, is likely still suffering? Is it really better for intimidation by the abuser to be replaced by sanctioned intimidation by the state? I don't believe that it is.

I'm not a lawyer. I don't have the legal language to name whatever system we should be using, but this isn't it. Victims of any kind of assault need to be able to choose, at any point in the process, to back out without fear of censure. To demand otherwise is inhumane. If we want to take crimes against the person seriously, then lets do that, but not at the expense of criminalising the very people who need the protection of the law.

---

Edit:
Another similar article here: http://www.guardian.co.uk/society/2010/nov/09/woman-jailed-dropping-rape-charges

Comments

[azekeil.livejournal.com]

Having read the article, I can understand both sides of the story. I think I agree with you that the legal system as it stands is not set up to deal with these sorts of complex cases, where the 'crime' is in fact still in progress throughout the proceedings.

I think this sort of thing needs to be dealt with by social services initially, who are set up to deal with this sort of thing (and thus won't get upset when victims 'waste their time'), who document proceedings in a way that is consistent and acceptable to a court, should a prosecution ensue. The social services should also have powers to offer a safe haven in the local community (perhaps through charities/volunteer lead schemes? This may or may not cause more difficulties with sheltering vulnerable people though, registration, etc.), and powers to inform the alleged perpetrator that their actions are under investigation and evidence they gather may form the basis of a criminal case against them.

IANAL, etc.

[emanix.livejournal.com]

Social services aren't set up to investigate crimes, the police are. I think we really need to throw the spotlight back onto the purpose behind the existence of the police force : To Protect and Serve. See that, 'serve'. As in investigating a case that doesn't then go through to court needs to be thought of not as 'wasting police time', but as serving the needs of the people involved. And EVERYONE is deserving of that.

[azekeil.livejournal.com]

Social services are already deeply intertwined with the law; take child protection for example. Additionally, the idea wouldn't be for them to investigate the crime, simply record the facts in a way compatible with legal requirements should a case go to trial.

I do agree with you however that the police could do some of the things I was suggesting.. but there will always be a conflict with 'wasting police time' and 'serving' where complex incidencts such as rape, especially where they lack the ability to stop the ongoing nature of the incident.

[blazingrowan.livejournal.com]

I wouldn't report it either. *sigh*

[struuth.livejournal.com]

In our current legal system, we are innocent until proven guilty. The onus of proof lies on the prosecution. It is expected that one's testimony be scrutinised to the extent that one doubts one's own actions; this is what the premise of "beyond reasonable doubt" refers (in part) to.

The (frankly, intolerably) low conviction rate of rape cases (although it has gone up 1% in the past 3 years) is partly because of the nature of the legal system as above. Questions such as "were you drunk?", "had you flirted with him?", "what clothes were you wearing?", "how did you tell him to stop?" are all allowable under examination; anyone (female or male) would likely be intimidated by such questioning.

However, the global question that you pose is partially embedded in the answers given by women in the rape cases that don't end in prosecution. "I'd had a few drinks but I was not drunk", "yes, we flirted, but it wasn't meant to be serious", "a short skirt", "I didn't to start with" - honest answers that pose the jury a problem in defining "reasonable doubt".

I don't question that we should have a 'rapee protection program' and that the psychological/emotional trauma of "having ones personal sovereignty removed" should be treated with respect by the courts. However, I'd also suggest that we should have a legal system that acts to protect men from false allegations; there are cases where men have been charged and prosecuted, with the inherant impact on their social lives, only for the case to be quashed on DNA evidence/witnesses or for it to fail under examination. At its most extreme, the argument is "Should mens' rights to a fair trial be subjugated to a woman's right to change her mind after having sex?"; after all, we now (finally) live in an age of Equality, jokes about 'ginger rodents' aside.

Michael

[meihua.livejournal.com]

I'd also suggest that we should have a legal system that acts to protect men from false allegations

We already have a legal system that acts in an incredibly effective way to protect almost all men from almost all rape allegations regardless of whether they're false or true. If you think it needs to be made even more effective at protecting men from false rape allegations and are willing to sacrifice even a fraction of a percent of true allegations (the overwhelming number) to achieve this then just stop responding now, your perspective is so fucked up on this that it's untrue. And you are - because you're willing to derail this post at the cost of getting a point across that we've all heard a million times before.

Just imagine, if you can, an alternative system. In this system, the definition of rape is "if she said you raped her, you are guilty, and you go to jail". Try to imagine you're a heterosexual man living under this system. How safe do you feel? How careful are you going to be approaching a woman? How utterly alone do you feel if someone decides to wreck your life? How completely unfair is this system, and how much does it dominate the way you think, act and fuck?

Welcome to the world some women (some men, too, and very many people of other genders) live in. Rape is fundamentally unlike almost any other crime. When there are no witnesses and no supporting evidence (like: most of the time) then it's one person's word against another. Our current system ensures that the rapist always gets away scot-free. The right not to be falsely accused of rape? How about the right not to be raped at any time by any man with absolutely no defense? The current system, with regards to rape, is utterly and completely broken.

The solution obviously isn't a system where we treat every accusation as immediately carrying a full-term jail sentence, despite the fact that this is the only system I can imagine which could possibly end rape immediately.

But we can start when men recognise the overwhelming bias of the court system towards rapists. When people stop to read posts like emanix's here without the need to mansplain and derail, and just listen. What the fuck does your comment even have to do with their posts except for saying "WHAT ABOUT THE MENS"?

[emanix.livejournal.com]

Michael,

Okay, as meihua noted, that was an impressive way to miss the point. You might not have heard the term 'mansplaining' before though, so I'm going to expand a little.

Men's right to a fair trial? Yes, absolutely. However I'm talking about a victim's right to withdraw or abandon an allegation before it gets to court. In other words, a system that benefits those who are falsely accused, or in a situation where boundaries were fuzzy, just as much as it benefits victims who don't want to suffer through the court process, since this means such allegations can be withdrawn.

In other words, I suspect you haven't bothered reading what I was actually suggesting, but only responded to a few hasty assumptions you made based on my opening statements.

Further, if you think that 'what were you wearing?' is a relevant question in a rape trial then you are part of the problem. Rape is sex without consent, full stop. It doesn't matter if a woman is dressed as a victorian nun and hiding in her own home, or if she's walking into a crowded sports bar stark naked, if someone then interacts with her sexually without an explicit YES, this is assault. If she is penetrated without her explicit consent, this is rape.

There is no such thing as implied consent. Wearing a short skirt is not consent. 'Flirting' is not consent. Attending an orgy and having sex with every single other person present is not consent, for that matter. You may well be the one person there who this woman doesn't want to have sex with, and it's just as much her right to say no as the virgin in church. 'Not saying no' is not consent either - silence is just as likely to be an indication of terror as assent, if not more so. Only yes means yes.

Let's try replacing the question 'did you ask him to stop?' with 'did you ask him to start?'. If the answer is no, it's rape.

But this wasn't what my post was about. I was talking about how complaints of physical and sexual assault in the UK are taken out of the victims hands with no option to say 'I'm not pressing charges', leaving both accused and accuser powerless. You didn't address that point at all.

[weegoddess.livejournal.com]

::sigh::

I wish that more people could read this. Have you considered posting it more publicly than LJ? (I see that you haven't locked it and so people could repost it if they chose. I'm guessing that was intentional?)

[emanix.livejournal.com]

Yes, I try to keep my posts public as far as possible unless it's only of interest to personal friends, and particularly on important topics like this one. I'm very happy to be linked to and quoted. As for somewhere more public than LJ, do you have any suggestions?

[weegoddess.livejournal.com]

I'd actually considered if I had any suggestions before I'd posted the original comment and at the time, the answer was no, especially not in terms of the British legal system. I have little to no knowledge of it.

In terms of 'world-citizen awareness' I came up cold too, though I expect that it would not be difficult to find blogs and such who would be open and interested in what you had to say. Google would be a great friend to you here. ;-)

[joreth]

I'd like to see the State be the one responsible for pressing charges & pursuing justice, so if the victim herself backs out, justice can still be served (theoretically) without further punishment of the victim. I agree that rapists should have charges pressed to prevent them from doing it again in the future, but the current system only further victimizes the victim while not doing much to punish rapists or prevent future rapes. It has always annoyed me that losing a "witness" is about equal to losing the case - some kind of agency should have the power to prosecute on behalf of victims for the good of society without requiring the victim's full participation.

But I don't know how to set something like that up.

[emanix.livejournal.com]

Agreed. Though I still think the pressing charges aspect should require the victim's permission. I'll be talking about the Spanner case (http://www.spannertrust.org/documents/spannerhistory.asp) in my later essay - in which several 'victims' were also tried for being accessory to their own assault, having been engaged in consensual BDSM activities. The law has not changed.
Clearly rape is not the same exact issue, but where neither victim nor accused is interested in taking the charge to court, I don't see how it is in the state's interest to do so.

[joreth]

Where I see it is in the State's interest to do so, is when a victim continues to be victimized for pursuing legal justice and so chooses not to, leaving a rapist (or any other criminal) free to continue his abusive, illegal activities. Precisely because it is so traumatic for a victim to go through the legal system, many victims of rape, abuse, physical violence, theft, etc. choose just to "let it all go", rather than be dragged through the emotional turmoil again, and their abuser goes free with no repercussions.

It is in this case that I wish the State to have legal right to pursue a criminal on behalf of a victim without the victim's participation, so that a criminal can still be removed, penalized, and held accountable for their actions, hopefully to prevent future crimes (particularly in the situations where one is put in prison and cannot commit future crimes even if one wants to) against future victims.

A victim should have the right to refuse to go through the whole process, but when a victim doesn't, a rapist (and other violent criminals) are left free to victimize others, and *that* is what I wish to stop.

[joreth]

Oh, and about requiring victim's permission ... this gets tied up with a victim who is *unable* to give permission (i.e. dead or otherwise incapable). As far as I can tell from my layperson's perspective, losing a witness is losing a witness, and the reason why is immaterial, legally speaking. So when I speak of some agency not requiring a victim's participation, I'm lumping in all crimes and all victims together, and it is primarily for the reasons of a victim being incapable of defending himself in court and letting the criminal off because there is no material witness that most distresses me about the idea of no victim to press charges.

Having a neutral agency to fight on behalf of victims without their participation would solve both that problem and the problem of victims being further victimized by the judicial process and choosing to back out. It would also (if created properly, although I couldn't tell you what "properly" would be) solve the problem of spouses refusing to testify or press charges on their spouses for domestic violence and abuse and therefore stuck getting their abusive spouses *back*, only now madder and meaner than before for having the neighbors call the cops on one of their loud fights. An abused spouse wouldn't *have* to take his or her spouse to court and deal with the fear and intimidation that often makes them back out of the process, but the abusive spouse would still (theoretically) be processed and removed from society, giving the abused spouse the chance to get out quietly or get help.

[struuth.livejournal.com]

At the heightened risk of being accused of being all number of things, I'm going to answer 2 of the points:

1) I was talking about how complaints of physical and sexual assault in the UK are taken out of the victims hands with no option to say 'I'm not pressing charges', leaving both accused and accuser powerless. You didn't address that point at all.

"we should have a 'rapee protection program'" - by which I mean a way of an accuser being protected during a rape investigation. It was intended as a shorthand for (in the same vein as) a "witness protection program", where the individual is moved to avoid intimidation and to preserve their safety.

I also said that "we should have a legal system that acts to protect men from false allegations". In the event that an accused man is guilty, he should not be protected; he doesn't deserve to be. In the event that a man is innocent, he should be protected; he doesn't deserve to have his life ruined. Further, I posited - "we are innocent until proven guilty"; thus, by my arguments extension, all individuals accused of rape or sexual assault should be protected UNTIL proven guilty.

I believe I am agreeing with you in part. I am, however, emphasising the need to remain equal in our treatment of all concerned within our current legal system.

2) But we can start when men recognise the overwhelming bias of the court system towards rapists. When people stop to read posts like manix's here without the need to mansplain and derail, and just listen. What the fuck does your comment even have to do with their posts except for saying "WHAT ABOUT THE MENS"?

I want to make two things absolutely clear at the outset.

I believe in equality. For all in all things. This isn't "man-ism" or "mansplaining" - this is arguing from the basis that everyone should be treated fairly in all matters; for example, in a court case, that we should all be entitled to a fair trial, free from intimidation etc.

I also believe that no-one has the right to falsely accuse anyone of anything (in shorthand, lie).

So, when someone posts "Victims of any kind of assault need to be able to choose, at any point in the process, to back out without fear of censure", it makes me very angry. Because it would mean that anyone could accuse anyone of anything and then back out; in other words, lie and then the legal system would support them in that.

So to suggest the following - "As in investigating a case that doesn't then go through to court needs to be thought of not as 'wasting police time', but as serving the needs of the people involved" is, in my opinion, just plain wrong. Because Joe Bloggs could accuse Sam Bloggs of anything, get it into the newspapers, ruin Sam's life, and then walk away without censure. If that's not "wasting police time", then I don't know what is.

From above, even in rape cases, I believe that everyone should be protected (yes, even the man if he is guilty). And then, at the end, when the case is resolved, it can all come out and then lives can be ruined. The "protection" would be costly and would have to be applied to all accusations but the police (and the legal system in total) would serve as well as investigate. But everyone would be treated equally in all things. And that is the only way we should move forward.

So, to answer the question: "What the fuck does your comment even have to do with their posts except for saying "WHAT ABOUT THE MENS"?". I would remind you that men have an equal voice to women; we have no right to abuse each other, either verbally, physically or emotionally, but we have every right to defend ourselves against accusations on an equal footing. So any discussion about the legal system MUST focus on the characteristics of everyone (colour, race, sex, sexuality and so on) and thus the discussion of rape should, by necessity, include the male perspective.

[emanix.livejournal.com]

joreth makes an excellent point above. This is in theory the system we are working towards, I suppose, but it's a long way off at the moment.

The issue of accusations getting into the papers is a problem with poor management of information in the criminal justice system, however, not a flaw with my suggestion. If allegations were genuinely followed up discreetly, rather than being leaked every which way, and then later withdrawn equally discreetly should the witness with not to continue then this need not be an issue. In fact, exactly what you're talking about in terms of protection of information, which makes me wonder why you have such a strong objection to this idea.

You do also fall in the trap of using language wherein man=rapist/accused, woman=victim/accuser, which whilst common is incorrect, and you might note that I have refrained myself from using such generalisations - you could just as easily become a victim yourself. This isn't about a male or female perspective, although we can go further into how several things you said in your initial response were obviously heavily biased by heterosexual male viewpoint - this is about a system that is heavily biased against a victim of any gender.

If we want to take male-female politics out of this entirely, I can also bring up cases where the same group of laws were used to criminalise consensual SM practices within an all male group, which were defined by law as 'actual bodily harm'. In that case the so called 'victims', since they could not withdraw the charges (having been brought by police, not by members of the group) were charged with being accessories to their own assault. Perhaps you feel this is also a perfectly reasonable state of affairs?

On an unrelated note, assuming that this is Michael I am responding to again, is it really necessary to continue posting using your wife's account? Livejournal accounts are free and it takes very little time to set up one of your own and reduce confusion.

[world-rim-walke.livejournal.com]

On the subject of publicity, I've heard the argument that rapes should be publicised in order to take away the stigma which is generally attached to being raped. Unfortunately most of the discussion I've had of this was years ago and in person, so I don't have any sources. What is your opinion of this?

Though this does open both the rapee and rapist to public scrutiny, I can see how, if publicised, this could bring a stigma to false accusors. This would depend on the press actually publicising it.

[emanix.livejournal.com]

I think that it is is quite possible to have both confidentiality up to the point of a definite conviction and *then* public naming - though I do feel that it should be up to the victim. While a lot of the stigma is related very specifically to sex-negativity, and fighting this is an excellent idea, I am also aware that being a victim of any kind holds a certain amount of distate for some folks who pride themselves on self-reliance and ability to defend themselves. I have known of people who were mugged, for example, but felt unhappy about discussing it also.

I think perhaps that using other means to combat sex negativity, reinforcing the message on consent 'only yes means yes', and influencing society in such a way as to scorn those who breach the personal sovereignty of others in *any* way - this is work towards the same goal, but can be done outside this context, and need not be at the expense of those who have already been harmed.

[world-rim-walke.livejournal.com]

Those sound like very reasonable solutions.

[meihua.livejournal.com]

What is your big deal with "false rape allegations"? This post is nothing to do with them. Shut the fuck up about them. Go talk about them on your own blog where you care so passionately about the point that you research and write about them in as much detail as emanix has written about this issue. It'll be a pile of ill-informed sexist bullcrap since you seem to think it's ok to repeat that short skirt crap, but at least it will be away from here.