I’ve never participated in a rape trial, but if these questions are still being asked, then maybe this analogy needs to be pointed out in return:
(Via “I’m At Two With Nature, via Keri.)
Damn straight fuck the patriarchy and rape culture.
However, I will say I have come to believe the criminal justice system is inherently incapable of dealing properly with most instances of rape, and as a society we desperately need to start looking into alternatives.
Just look to the questions the defense was permitted to ask of the alleged victim in the Lovett case
The rape of a stranger such as this scenario of a person walking down the street is very rare.
Most victims of rape intimately know the person who raped them.
Quite often it is the husband or father within a dysfunctional family.
In which case the questions asked will be so much more restrained, I’m sure . . .
Ah, well then they are REALLY asking for it – what are they doing living with them in the first place? Surely they have a choice, don’t they?
How many people raped are raped at gunpoint Jeremy?
The reason it’s difficult to prove rape is precisely because most rapes are nothing like the situation described in your analogy.
Actually Sam, threat of violence is one of the leading components of reported rapes. It doesn’t need to have a gun for the threat of real harm to be valid.
Yes, because the only way you can be terrified is if someone pulls an actual gun on you. Threats to kill, threats to beat the shit out of you, backhanding you, someone who is twice your size or you know has a history of violence…. doesn’t count. If someone pulls a knife on you and demands your wallet, is it fair to say “Well, it’s not like he pulled a gun on you”
How many times do we here alleged victims of rape asked why they didn’t “fight back harder” even when there was evidence of physical violence? How many times are women asked why they were afraid of a man twice their size who had threatened them? How many times are women asked why they were wearing that skirt or whether they were out looking to have sex?
All irrelevant of course, because the word “gun” is used in that analogy.
I could have Sam wrong here – after all he is an asshat 😛 – but I think his objection stems from the same issue I keep banging my head against….
There’s no question that a horrifying number of rapes occur where violence or the threat of violence is used without there being a weapon (and for that matter, plenty that don’t involve physical violence directly). The point is not that the crime doesn’t happen, or that the victim’s suffering is in any way less real or less important, but that its much harder to prove, to the standard required in criminal law.
If I threaten to hit a person that I know unless she has sex with me, and she acquiesces to the threat, there’s physical evidence of the sex, but quite likely only her testimony to establish the lack of consent. Unless someone overheard our conversation, I admit the truth or am caught blatantly lying under cross examination, or there is some other corroborating evidence, how is a prosecutor supposed to establish beyond reasonable doubt that a rape occured? In most cases, how is anyone really supposed to find that out with any degree of certainty besides the two of us?
I don’t really see any way courts in their existing form can possibly get this balance right. I mean, rape is still massively under-reported, under-prosecuted, and under-convicted, even in jurisdictions where there are rape shield laws and the like that are already questionable at best from the perspective of the rights of the accused.
Um… that really should read “in most cases […] besides the two parties”, not “the two of us”. I was only adopting the first person for the single entirely fictional example, not stating/suggesting/etc that I am responsible for the majority of actual rapes that occur. Which hopefully is obvious, but it seems sensible to clarify.
I guess what I’m talking about, Jordan, and what the analogy talks about is in cases where it’s been established that crime has occurred – evidence of physical violence, etc – women will still be asked questions in court about what they were wearing, questions about exactly how hard they fought, how afraid they were, as if – even when we know physical violence has been used – the woman is still somehow responsible for the rape. Because she was wearing a short skirt, or she had been drinking, or was alone at the time.
Obviously in a case where there is no physical evidence of rape, questions must be asked. But even when there IS physical evidence of rape, people will still ask those questions, and people will still say things like “Well, wearing what she was, what did she expect?”
At the end of the day, a jury of one’s peers determines the guilt or otherwise of an alleged rapist. I’m fairly certain the Evidence Act contains provisions relating to the manner in which any witness can be examined in Court proceedings (and I believe there are special provisions pertaining to victims or rape and sexual offences). There is also the person at the other end of the bar table whose job description includes objecting to irrelevancies, harrassment and the like. If the “she was asking for it” strategy is successful, the problem rests with society in that 12 randomly selected people have bought it. The problem is not with the lawyer who has been retained for the primary purpose of procuring such a verdict and not with the legal system which rightly presumes that none of us are rapists unless there is some pretty damn good evidence suggesting otherwise. I don’t know very much about rape trials either, however, I would be surprised if the contributory sluttiness strategy is as successful as it is made out to be. The system is far from perfect but before we consider systemic overhauls which undermine principles of natural justice with a view to making it easier to procure convictions in sex offences, we need to think about the other side of the coin and the fact that even the current system is able to be manipulated by the unscrupulous with devastating results for the innocent as portrayed in a recent SBS doco entitled “Every Family’s Worst Nightmare”.
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