11.15.2014

when sexual assault goes public: #beenrapedneverreported and the presumption of innocence

The revelations about Jian Ghomeshi hit my Facebook feed in waves.

First many friends were shocked by CBC's announcement that they were "severing their relationship" with the longtime and very popular radio host. I don't listen to radio and I'm always surprised at how many people do.

Then came Ghomeshi's own statement, which one friend very perceptively recognized as likely Ghomeshi's attempt to get ahead of a story in which he would be accused of assault.

Then came his victims - now 14 people - who have courageously come forward to tell their stories.

Despite the corroboration of multiple victims, one Facebook contact of mine (a woman) continued to praise Ghomeshi for "pushing the boundaries of what the public finds acceptable sexually" - that is, a brave warrior for BDSM. I unfriended. BDSM has at least one thing in common with any other sexual activity: it's consensual. (See: poor persecuted pervert by Sex Geek.)

Whenever a famous and well-liked public figure is accused of sexual assault, the public's reaction serves as a microcosm - and a litmus test. First it's "He wouldn't do that!" - based on a public persona, as if rapists are somehow recognizable. They're certainly not good-looking, congenial, and hip! Then it's "If these women were assaulted, why didn't they report it?" and "They're only saying this to get attention!"

Statistics: YWCA Canada.
These ignorant reactions present an excellent opportunity for education. But for those of us who have been educating about rape half our lives, it can be so tiring. Do people still think these things? Do they still not understand? Is rape still shrouded in ignorance and myth? Yes. Yes. Yes. Sigh.

#BeenRapedNeverReported

But that's the great thing about solidarity. When one of us is too tired or too disgusted or feeling too raw and vulnerable to do the work, a sister or brother will step up and do it twice as well.

Antonia Zerbisias, who very recently retired from The Star, along with her friend Sue Montgomery, also a journalist, started a hashtag on Twitter - and it took off, big-time. #BeenRapedNeverReported gave survivors a place to share, and it gave the media a peg on which to hang many excellent stories about why victims of sexual assault usually do not report the crime to the police. Sadly, #BeenRapedNeverReported is also awash with stories from women who did report, and wish they had not.

If you are hearing about this for the first time, the Twitter phenomenon has gotten some excellent media attention:
Women find power in #BeenRapedNeverReported hashtag (Toronto Star),
#BeenRapedNeverReported hashtag trending, as women share stories of assault (CTV),
Women who were raped take to Twitter to explain why they didn't report it (Montreal Gazette),
#BeenRapedNeverReported: This was our way of silencing the silencers and denying those who would deny us our voices, our justice. (Al Jazeera English)
- Why women go online to report sexual assault but not to police (CBC, "The Current")...
and many others.

It would appear that most people actually don't know that the majority of rapes are not reported to the police. Why would that be? Here's an idea. (Please go and read the full story.)
So what kind of woman is reluctant to report sexual assault? Anyone who consumed drugs or alcohol before the incident, who was intoxicated; who flirted with, has a relationship with, knows, or has significantly lower status than the perpetrator.

Any woman who's had an abortion or messy divorce. Anyone who might be in a custody battle. Anyone with a sketchy social media history. Anyone who's sexted nude photos or has unorthodox sexual tastes.

Any sex worker. Anyone who initially consented to sex. Anyone with addiction issues. Anyone afraid of her assailant. Any First Nations woman. Anyone from a minority or immigrant community. Anyone who's been raped before and not been believed.

Anyone without a strong support network. Any woman who waits too long. Anyone who's seen a shrink, or been prescribed medication for mental or emotional conditions. Any woman who doesn't want her medical records or psychiatric history disclosed. Or who has family members and a community who could be hurt or shamed by disclosure or publicity. Anyone with a criminal record or who is on public assistance.

Any woman with a past. Any woman with a future she doesn't want derailed by the stress of reporting.

In short, the kind of woman who doesn't report a sexual attack is almost any normal rational woman.
The "presumption of innocence" and some other legal concepts

I once saw an online commenter claim that former district attorney Linda Fairstein said that 98% of rape accusations are false. (I think that was when I decided to stop reading comments on news stories.) What Fairstein really said: 98% of rapes don't generate enough legal evidence to be prosecuted as rape, so most are "bumped down" to another category, such as aggravated sexual assault, sexual assault with intent to harm, sodomy, sexual abuse, or other legal categories. These categories are legal distinctions, each carrying different implications for evidence and punishment. But they are all sexual assault.

Prosecutors routinely down-grade formal offenses to the highest level for which they feel they can get a conviction, a kind of legal gamble based on a whole raft of variables, from the likability of the accused to the perceived credibility of the victim, to what kind of defense the accused can afford. Prosecutors don't downgrade rape to other legal categories because they think the victim is lying, or because they're not sure if the accused actually did it. If they thought that, the case would never proceed to court in the first place!

Statistics: RAINN
The legal distinctions of rape, sexual assault, aggravated sexual assault, and so on, can denote all different things: whether or not a weapon was involved, whether the victim was tortured, what sexual acts were involved, whether the victim met the criteria for good victimhood (not a sex worker, not intoxicated or doing drugs), whether the victim and assailant knew each other, whether the victim and assailant had engaged in consensual sex in the past, and so on.

These are legal categories. And none of the categories have any bearing on whether or not a sexual assault occured. That definition is conveniently black-and-white. Was there consent? If no, it's sexual assault.

Think manslaughter versus murder: either way, someone has been killed.

If a friend of yours - or a student, your daughter, your niece, your colleague - discloses that she was raped, you would never ask, "Was that really rape, or was it aggravated sexual assault? Does that constitute sexual assault under the laws of Ontario? Is there enough evidence to prosecute?" You would never even think such a thing. You would know that the finer points of the law have nothing to do with your friend's pain.

Yet one legal concept is frequently invoked in just this inappropriate way: the presumption of innocence. As person after person came forward to say that Jian Ghomeshi had sexually assaulted them, people cried, "Whatever happened to the presumption of innocence? He is innocent until proven guilty!"

The presumption of innocence - or "innocent until proven guilty" - is an important tenet of the legal and judicial systems, and one that is constantly undermined by practices such as pre-trial confinements. (See this excellent column by Carol Goar.) It is not some sort of golden rule that we should invoke by closing our minds to logic and reason.

A blogger I know once posted photos of her daughter's battered face - purple and green with bruises, eyes swollen shut, lips split and bloody - at the hands of her ex-husband. A commenter-troll said, "Whatever happened to the presumption of innocence? Is this guy guilty before proven innocent?"

There was no question that the woman had been assaulted. And there was no question of who had assaulted her. Unless this assault was prosecuted and went to trial (two highly unlikely outcomes), no one had to think about any presumptions of innocence.

Legal guilt is not the only form of truth

Rape is rape whether it is reported, whether it is prosecuted, and whether a rapist is found guilty.

If a person is murdered, that person is dead, whether or not the murderer is ever tried or convicted. If you are mugged and someone runs off with your wallet, a crime has taken place, whether or not you report the crime to the police. Rape is the same way. If you are sexually assaulted or raped, that has taken place, regardless of what comes after. Most women do not report rape, and most reported rapes never go to trial. Does that mean those women were not raped?

Some people seem to think that a legal concept that allows an accused person certain rights in court is somehow applicable in a general sense. That somehow we must wait for a court to convict an offender before we admit what we have seen and heard with our own senses. As if the only kind of truth is the declaration of a court of law.

Or do they?

Have we really confused legal conviction with actual truth? I don't think so. In many cases, we will continue to believe an accused is innocent or guilty, despite what a jury declares. (O.J. Simpson, anyone?) But rape? Suddenly we need a conviction in court before we will believe a woman who says, "This man assaulted me".

I understand that there are false accusations of rape. They are rare, but they do occur. Sexual assault, however, is not rare. And we're not the legal system. We're not a jury. We're not bound by law to process information according to a certain formula. We're human beings, and we can operate from a place of both logic and compassion.

When someone takes a painful and courageous step forward to say, "I was raped": presume truth.

9 comments:

Kristina H said...

Thanks for this well thought out post.

karen said...

This essay was linked in the comments on a Ghomeshi story on another blog I read:
http://fugitivus.wordpress.com/2009/06/26/another-post-about-rape-3/

It's not strictly about the reporting of rape, it is an answer to the (very weird and inappropriate) question of why women don't "fight back, or fight harder." Her thesis is that we are taught to "be nice, be quiet, don't argue," etc, and this is supposed to keep us safe. When we do all that, and still have violence perpetrated on us, it is no surprise that we do not suddenly step out of what is expected. I think it applies to reporting also. We have been taught that reporting often does not make it better.

I was happy to see the response to Ms Zerbias' action. I hope it makes a difference.

laura k said...

It's not strictly about the reporting of rape, it is an answer to the (very weird and inappropriate) question of why women don't "fight back, or fight harder." Her thesis is that we are taught to "be nice, be quiet, don't argue," etc, and this is supposed to keep us safe

Many women are taught to be compliant and conciliatory, and I do think this contributes to making some women targets of abuse.

However... (a) abuse is still wrong, and still the abusers fault and (b) fighting back against rape is mostly a fantasy. Women do not "let" themselves be raped.

Many people don't believe that there can even be rape unless the assailant has a knife or gun! They truly have no idea what rape looks like, how it happens.

Women (and girls, and boys) do whatever they must to get through rape alive. That may mean fighting back, it may mean not fighting back.

I don't think not reporting is about compliance. It's about fear - very well justified fear. Depending on who you are and what has happened to you, reporting may indeed make it worse.

I'm not a bit advocate of urging women to report.

Marie Snyder said...

I just wrote about this topic yesterday, and just now added a link to your post in mine. I recently had a discussion in my grade 12 class about JG, and overwhelmingly the argument centred on presumed innocence. The vocal few in the class, all guys, insisted there must be physical evidence, and, since the women didn't go to the police immediately, they're obviously lying. I took them down with facts and a reality check, but it was stunning how much the tide has turned. It's not something I'd put on my own blog, so it's nice to be able to share here - one step removed from public scrutiny.

laura k said...

I'd be curious to know what these guys thought these women gained from false reporting, what the incentive was.

Could you clarify what you mean by "the tide has turned"? From when and regarding what?

karen said...

Oh, I agree with you. Certainly abuse is wrong, and I think the conciliatory behaviour that women are mostly taught is enforced by fear. I just think the essay I linked adds to the discussion.

laura k said...

Thanks, Karen. :)

[And thanks, Kristina, if you're following the thread.]

Marie Snyder said...

By "the tide has turned," I mean that we've gone back to completely questioning the victims (alleged victims), and it did feel, to me, for a while there, that it was maybe getting better - that things were moving in the right direction at least.

They thought the women were in it to bribe JG for money to shut them up or to ride on his coattails for 10 minutes of fame. They still think so. I was able to quiet them, but not entirely to sway them.

laura k said...

Thanks for clarifying, Marie.

I sometimes feel things are moving in the right direction, sometimes feel everything's going backwards. Maybe it depends on who you're talking to at that moment.

You might have had better results if you had been speaking to each person individually, rather than in a class setting. Men in groups, especially young men... there are so many expectations attached.

But I don't know these guys, it could be wishful thinking on my part.