When law consents to rape
The legal system has never been great at dealing with the crime of rape, so a story like that about the horrific ordeal suffered by Miss C at the hands of the legal system comes as no surprise. Rather it is a dreadful reminder of how long there is still to go before the law is able to adequately address gendered crimes.
As Miss C recounted how she screamed when raped 25 times by 14 men, the defence counsel reportedly asked her "No, you were moaning in pleasure, weren't you?"
It is not the aim of this post to levy accusations at the particular defence lawyer. He was doing his job. He was required, within ethical and legal constraints, to present the best possible defence for his client, who was charged with extremely serious offences. The aim of this post is to critique the system which makes it legitimate to put to a woman that she enjoyed being violated 25 times by 14 men, that makes it legitimate to violate the victim again and again and again, to do verbally and mentally what the rapists did physically.
What is the purpose of a question like that?
Stephen Odgers SC, chair of the NSW Bar Association's criminal law committee reportedly explained it as follows:
"...at the end of the day, if the accused says the woman consented … the defence has to be given a reasonable opportunity to test the complainant's account"
Consent is an integral part of the law of rape. If there was consent, or if the alleged rapist believed there was consent (even if that belief was unreasonable), the law says there was no rape. It is presumed that the woman consented - that is part and parcel of the presumption of innocence. The prosecution (or rather the victim), has to prove, beyond reasonable doubt, that she did not consent to what was done to her. Then she has to prove that the man did not believe she was consenting. Should she fail on either of those tests, in the eyes of the law, what was done to her is not rape. Its sex, its legal, no harm done, its just what men and women do.
The principle works in reverse too - if what happened was sex, then it can't be rape. In the eyes of the law the two are mutually exclusive. As Catherine MacKinnon eloquently put it in Towards a Feminist Jurisprudence: "sex itself cannot be an injury. Women consent to sex every day. Sex makes a woman a woman. Sex is what women are for."
If a woman was "moaning with pleasure" she must have been having sex, not being raped. Isn't that what women do during sex? Isn't that what sex is about? If the jury can be made to believe that there were moans of pleasure rather than (or maybe mixed with) shrieks of fear and pain as this woman was gang-raped 25 times by 14 men, well, then the job's half done.
Does this sound grotesque? It is!
We would be shocked if victims of torture had to prove that they did not consent to what was done to them. We would be bewildered if a victim of non-sexual assault had to prove that he did not consent to the violence. Yet, when it comes to rape, a woman gang-raped 25 times has to prove that she did not consent to her violation. Her consent is assumed until she proves otherwise.
That is the corner-stone of the law of rape. Within that system it is legitimate to suggest that a woman had an orgasm as she was raped by 14 men or to dig up her psychiatric records or to overturn a conviction because a judge failed to instruct the jury that a woman who was beaten, choked, shocked with a cattle prod and forced to have sex with a dog may have consented to this treatment (an actual case from UK, if anyone's wondering).
Compounding the problems with the notion of consent is the fact that the law of rape was not developed with the victim in mind. It was a variation on the law of criminal damage by one man to property of another. The woman (property of husband or father) was raped (damaged) by another man. Her feelings didn't come into the equation. They mattered so little in fact that occasionally the rapist was "punished" by being made to marry his victim (you break it, you buy it sort of thing). Some changes have been made, but they have been tinkering at the surface of the system that is stacked against treating the victim as a human being who has been terribly traumatised in a way that the male-centric legal system has never understood particularly well.
The law must protect the rights of the accused. It must allow 10 guilty men to go free rather than put one innocent man in jail. What it must not do is consent to rape and call it justice. Whether it means that further reform is necessary or whether it is time to admit that tinkering around the edges does not work and go back to the blue-prints, is not for me to decide. But lets hope that Ms C's horrific story will lead to change that will, in time, make rape trials a process of justice rather than of legally-sanctioned violation.
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