Submitted by Ashley Major
Undergraduate student, Human Justice
Republished with permission from:
Slaw, Canada’s online legal magazine
Ashley Major is a Canadian student completing an internship at Independent Academic Research Studies in London, England. Upon the completion of this internship, she will graduate with a Bachelor of Arts Degree in Human Justice from the University of Regina. She plans to attend law school in the future, specializing in human rights law. Her main focus is on addressing human rights violations against women, particularly sex trafficking.
In Canada, there have been discussions as to whether or not we live in a “rape culture”. Although difficult to define, this term refers to a society in which sexual assaults are ignored, legitimized, or blamed on the victim. Proponents of the existence of a rape culture claim that factors such as the clothes the victim was wearing, how much she had to drink, the relationship she had with the perpetrator and whether or not she appeared interested in sex, become the main focus of rape cases. Victims are put on trial instead of their alleged attackers. Proponents argue that addressing the presence of a rape culture will help illuminate the thinking fallacies surrounding rape and perhaps help to end it. Others have argued that the term “rape culture” further embeds essentialist sexual scripts in society- that of the woman being the weak, unfortunate victim and the man being the evil, dominant oppressor. The use of the term further paralyzes women and actually leads to more harm than good. Interesting blog articles describing both standpoints can be accessed here and here, respectively.
Whether or not a “rape culture” exists, cases involving sexual assaults often result in acquittals. Why is this so? Is it because alleged rapes do not occur as often as they are reported? Is it due to procedural issues such as a lack of convincing evidence? Is it because juries stigmatize the victim and the crime of rape in general? On January 30th, London Chief Crown Prosecutor Alison Saunders gave a speech at City Hall entitled ‘rape and sexual assault – challenging social perceptions’. She addressed the issue of acquittals for rape charges and gave insights into why they may occur. She particularly focused on how “rape myths,” stereotypes and both conscious and subconscious views may influence juries in their decision to acquit. Saunders explained that both men and women can be victims of rape. When discussing sexual assault and rape victims in the following article, the pronoun ‘she’ will primarily be utilized. This is not an attempt to ignore or downplay sexual assaults against men, but rather to focus on the gendered stereotypes that surround the crime of rape.
The London Context
In the United Kingdom, rape is a crime under the Sexual Offences Act 2003. Other assaults of a sexual nature are included as crimes under this legislation as well. Most offences are committed against young women, ages 16-25. A 2005 report from the Metropolitan Police Service indicates that over the course of one month, 87% of alleged victims were vulnerable in at least one of the following ways: being under the age of 18, having a mental health issue, being in a relationship with the accused, and having consumed drugs or alcohol prior to the offense. Although prosecution rates for rape cases have been increasing in London, cases receiving a designation of No Further Action (NFA) occur on approximately a 1:1 basis. Data from the Crown Prosecution Service London indicates that jury acquittals are the primary reason for unsuccessful outcomes in rape cases. The 24 month period to November 2011 places this percentage at 48%. Other reasons include withdrawal, refusal of contact with police, victims returning home to another country and victims declining to give evidence at a re-trial. Ms. Saunders indicated that the vast majority of sexual assaults are underreported due to feelings of shame and fear of the court process.
The Canadian Context
In Canada, rape falls under the classification of sexual assault in the Criminal Code of Canada. There are three categories: sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm, and aggravated sexual assault. These are sections 271, 272 and 273, respectively. Statistics from 2004-2008 indicate that women and girls between the ages of 16-24 report the highest level of sexual victimisation, more than double that of any other age category. Almost half of the sexual assaults reported to police in 2007 are those of girls under the age of 18. The General Social Survey (GSS) indicates that only 10% of sexual assaults are reported. In the vast majority of sexual assaults, the offender is known to the victim. 49% of adults charged with sexual assault were convicted in 2007. Sexual assault cases are less likely to result in guilty verdicts than other violent crimes, often due to issues such as lack of evidence and notions of victim unreliability. Although Canadian rape shield laws prevent the inclusion of an accuser’s past sexual history in trials, judges have discretion to allow certain pieces of evidence in both civil and criminal cases.
In her speech, Ms. Saunders argued that there are several prevailing rape myths in society which may serve as obstacles to obtaining convictions:
1) Rape only occurs between strangers in dark alleys.
This belief is problematic because it suggests that women can only be raped by those unknown to them. Statistics indicate that the vast majority of rapes are perpetuated by a person known to the victim. Many are raped in their own homes. This belief also indicates that women can prevent being raped by avoiding certain places. Rapes can occur anywhere. Women who experience such stranger rapes may be blamed because they should have known better than to place themselves in dangerous situations.
2) Women provoke rape by the way they dress or act
This excuses the offender and places the blame on the victim. It suggests that women who are raped get what they are asking for. Ms. Saunders argues that dressing attractively and flirting is an invitation for attention, not rape.
3) Women who drink alcohol or use drugs are asking to be raped.
This belief blames the victim for the rape because she “chooses” to be vulnerable. If a woman is drugged, drunk or unconscious, she is hardly able to give consent.
4) Rape is a crime of passion
This myth assumes that men are unable to control their sexual urges. It romanticizes the notion of rape. It suggests that only young, attractive women are raped. In reality, women of all demographics are raped. This belief also ignores the many other inciting factors of rape besides sex, including desire for power, violence, control and humiliation over one’s victim.
5) It is not rape if the woman did not fight back
This view ignores the fact that many victims are legitimately in fear for their lives during the rape. Many cooperate with their attacker in the hopes they will be released after the attack. Intense fear can also paralyse victims and they may be unable to fight. Women who are drugged or heavily under the influence of alcohol may also be unable to fight back. As well, non-consensual intercourse does not always result in visible signs of abuse. The victim may very well have been actively resisting, but physical evidence of this may not exist.
6) The way a woman acts afterward indicates whether or not she has truly been raped
Victims react a number of ways after a rape. Those who appear to have a flat affect may be numb or in still in shock. Rape creates feelings of intense humiliation and shame, which may prevent victims from showing other emotions.
7) Women claim rape when they regret sex or want revenge.
This promotes stereotypes that women are vindictive, untruthful and capricious. While there certainly are false accusations of rape, these are not the majority. Ms. Saunders indicates that approximately 2% of rape cases comprise false accusations, a percentage which is lower than that of false reports for most other crimes.
8) Only gay men get raped/ only gay men rape other men.
This view exacerbates homophobia and promotes the notion that straight men are safe from rape. Rape is often fuelled by elements of power, dominance and control, not sexual attraction. Men of all orientations can rape and be raped. Such stigmas result in very low numbers of reported rapes by men.
9) Sex workers cannot be raped.
This belief justifies violence against sex workers. Sexual transactions are for consensual activities and thus sex workers must give their permission. Sex workers have just as much of a right to give consent as does the rest of society.
10) If the victim takes too long to report the rape, it was not rape.
This belief ignores the effect that shame and shock may have on the victim. It may take a while before he or she feels able to come forward about the rape. Another issue to take into consideration is cultural and religious beliefs. Women of certain cultures may be shunned or even killed by their families if they admit to being raped. This study on the lack of disclosure of sexual assault by refugees and asylum seekers to the UK offers insights to cultural influences on reporting rape.
Effects on Juries
Do these beliefs surrounding rape influence the decisions of jurors? A jury in Sydney, Australia acquitted a man of rape in 2010 because the accuser’s “skinny jeans were too tight to take off himself”. Ms. Saunders cited a London study by Finch & Munro (2005) which examined how mock jurors responded to rape cases, concentrating on those involving intoxicants. The study found that jurors focused primarily on the victim and her behaviour- her clothing, level of intoxication, failure to fight back, etc. Most were willing to forgive men’s sexual behaviour unless there was grave violence involved. Saunders indicated that in order to have legal credibility, a witness must be mature, articulate, undaunted by cross-examination, psychologically stable and in possession of a clear recollection of events. Such findings are also noted by Balfour and Comack (2004) in their book The Power to Criminalize. They describe several Canadian cases of rape in which victims were deemed unreliable witnesses. These women were portrayed as being loose, violent, criminal, mentally unstable, or capricious. A case which resulted in a conviction was that of an educated, sober woman who was violently attacked. She was visibly beaten, articulate and able to hold her composure on the stand. Due to the nature of rape and the circumstances often surrounding it, such “suitable” witnesses are often few and far between.
Rape Myths Prevalent in the Canadian Criminal Justice System
Canada was recently in the news headlines for the furore created by the remarks of a Toronto police officer. While giving a speech in January 2011 to students as Osgoode Hall Law School, Officer Michael Sanguinetti made these contentious remarks: “. . . women should avoid dressing like sluts in order not to be victimised”. His statement, akin to the second rape myth Saunders identified, inspired a series of protests across the globe known as “Slutwalks”. These protests involved reclaiming the word “slut,” as well as raising awareness about victim blaming for sexual assaults. Other actions of criminal justice professionals have indicated that rape myths are prevalent in the Canadian justice system. Manitoba judge Robert Dewar, who oversaw a case of sexual assault was criticised for claiming “sex was in the air” and for suggesting the woman’s attire contributed to her assault. In 2003, Justice Fred Kovatch suggested that a 12 year-old sexual assault victim was the sexual aggressor. She looked older than her age, was intoxicated and seemingly seduced the three men charged with her assault.
Are we living in rape cultures?
Prosecutor Alison Saunders timely report revealed rape myths that also exist in Canada. She suggests that the portrayal of women in the media, the tendency to blame victims and the misconceptions surrounding the crime of rape help create such myths. People do not seem to think much of it when someone claims to be “raping the repeat button on youtube”. Even celebrities such as Johnny Depp sometimes use the word flippantly, as he did when comparing photo shoots to rape. The term “rape culture” is a harsh term. It suggests that rape is very much ingrained in our society. Perhaps, as some have argued, the term is not suitable and is possibly detrimental. However, the gravity and nature of the crime of rape appears to often be undermined by mainstream society. Reading through Saunders’ list of rape myths, I know I have heard them all; I, as an informed young woman, have even subscribed to some of them. Was Officer Sanguinetti purposely trying to be offensive when he told women not to dress like sluts? Most likely not. He probably could have got his point across by telling women to take extra caution on nights out. We as women know that drinking and walking alone makes us more vulnerable; we do not have the privilege of feeling safe while undertaking certain activities. But as Ms. Saunders said, being vulnerable or flirtatious is not an invitation to rape.
Mr. Sanguinetti’s comments are indicative of the mentality that makes up a rape culture: namely, the tendency to blame women for their own victimisation. Juries are made up of members of society. If these beliefs exist in society, they will be taken into courtrooms. These thinking fallacies have also been demonstrated by justice personnel, including police officers, lawyers and judges. Every rape case that blames the victim further justifies belief in rape myths. Whether or not we use the term “rape culture,” certain mentalities surrounding rape have to change. One sign from a “Slutwalk” perfectly clarified the attitude that needs to be taken on rape:
- Things that cause rape?
1) Flirting 2) The Outfit I’m Wearing 3) Drinking 4) Rapists
Only the fourth option, forever and always. Let’s get it straight, in Canada and across the globe.