![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
emanix.
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
no subject
Date: 2010-11-11 07:52 pm (UTC)But I don't know how to set something like that up.
no subject
Date: 2010-11-11 11:09 pm (UTC)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.
no subject
Date: 2010-11-16 09:24 pm (UTC)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.
no subject
Date: 2010-11-16 09:36 pm (UTC)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.