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Collateral Damage Part 1. How being assaulted can make you a criminal.
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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
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
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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.
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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
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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?)
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But I don't know how to set something like that up.
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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.
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