Rape, Assault and Harassment: issues with the legal standing of sexual offenses

COMMENTARY - These past few months, the Harvey Weinstein debacle as well as the subsequent #metoo movement have sparked conversations on rape, sexual assault and sexual harassment, the frequency with which they occur, and their universality. Women’s accusations against powerful men in fields ranging from the film industry to academia have helped bring much needed attention to the urgency to rethink the legal definitions of sexual assaults in an attempt to end what can today be defined as a systemic and epidemic issue of sexual violence, upheld through every day acceptance. What counts as sexual violence? How do we explain the alarming rates of unreported rapes and low convictions? What role does the law play in delineating what appropriate sexual behavior is? This article will aim to answer these questions, first by examining the legal standing of rape, sexual assault and sexual harassment in developed countries like the US or the UK. It will analyze the causes of issues with existing laws, before making recommendations to better the legislation through the recognition and inclusion of what is dubbed the ‘rape culture’.  

 

English

Don't rape - source: Flickr

The legal standing of rape, sexual assault and sexual harassment

The most common definition of a sexual offense, according to the United States Department of Justice, is “any type of sexual contact or behavior that occurs without the explicit consent of the recipient.” [1] Although each country has its unique ways of defining sexual assaults, we can note some overarching similarities, such as the notion of consent or more worryingly, the high number of unreported crimes and low conviction rates.In the UK for instance, studies indicate that about 85% of all rapes go unreported, mainly because victims find the legislative process embarrassing or because they believed reporting would be unhelpful. Out of the 15% victims that do come forward, only an estimate of 62.5% of their cases end in convictions. [2] These two elements therefore indicate a very clear problem with sexual assault laws.  

Indeed, it has been reported that the prosecution of victims consistently leads to skepticism and doubting. This is illustrated in the UK with the case of Frances Andrade, who committed suicide a few days after her court appearance over assault allegations against her former music teacher, Michael Brewer, in 2013. Survivors of sexual assault who report the crimes committed against them often describe their experience with the law as humiliating and degrading, which in part explains why many cases are never reported. The confusion linked to this treatment comes from the fact that sexual offences are the only type of cases in which the victims are not believed from the beginning. For rape or sexual assault allegations, “victims still find themselves subjected to hostile questioning”. Giving evidence is described by victims as an extremely difficult process, first because of the embarrassment associated with having to provide intimate details of degrading situations, coupled with the undermining inflicted upon them by the defense attorney, the police, the judge and many more actors involved in the process. [3]

Furthermore, victims’ testimonies teach us that plaintiffs are discredited in every way possible, despite the protection laws are supposed to ensure. For example, victims are often blamed for drinking, whereas Alice Irving, lecturer in law and campaigner against sexual violence, informs us that alcohol consumption is in fact not a legal way to invalidate one’s testimony, as “you can’t consent if you lack capacity, and you lack capacity when you are very drunk”. [4] Another difficulty faced by victims of sexual abuse in seeking justice concerns the setting of the rape. Indeed, many sexual assaults do not match preconceived ideas of rape society has (with physical injuries and public exposure for example), making it harder to prove the violence and criminal nature of the incident. For instance, studies have shown that juries are more likely to convict a ‘stranger rape’ than a ‘non-stranger rape’, as in the latter situation, consent is often taken for granted. [5]

Additionally from this flawed application of laws, we can still find in current day legislation some discrimination and victim-blaming. In the US, a 1979 North Carolina law is still being used in court, ruling that continued intercourse with someone who consented then backed out isn’t rape. Also, last year, an Oklahoma court ruled that oral sex with an unconscious victim could not be criminalized. However, the toughest charges to prosecute are unwanted touching, for which laws are full of loopholes and can be adapted to the judge’s interpretation. [6] Many legal scholars have pointed out that the reason for law’s inadequateness in responding to women’s experiences of sexual violence is its drafting and application being carried out by a majority of men. Catharine A. MacKinnon, an American law professor specialized in issues of sexual harassment, argues that “whether a contested interaction is rape comes down to whose meaning wins.” In other words, under male supremacy (meaning societies in which men occupy the highest places of the social ladder), men’s perceptions usually determine if a woman has been violated. MacKinnon goes on to claim that the well-known belief in fabricated rape charges (hence the skepticism previously mentioned) stems from men's interpretations of events, which fail to align with women's experiences: "To them, the accusations are false because, to them, the facts describe sex. To interpret such events are rape distorts their experience.” [7] 

This therefore leads us to believe not only that laws are flawed in a way that makes them inefficient in protecting women against sexual violence, but they are also inadequately enforced by legal professionals, who consistently undermine victims’ testimonies, leading to the alarming rates of reporting or conviction. However, new perspectives on sexual crimes seem to be making their way within the collective conscience.

Rape culture

An important element that has become an essential part of academic and activist work for women’s rights over the past few year, and that aims to create a new lens through which to look at sexual assault, is the concept of ‘rape culture’. It is designed to denounce the ways in which society blames victims of sexual assaults and normalizes male sexual violence. [7]

Rape culture has a much larger scope than the regular criminal act we use to define what a sexual misconduct is. For instance, experts say that the 'locker room talk' US president Donald Trump was accused of during his presidential campaign is not legally considered a crime, but feeds into the culture of sexual harassment: “The more pervasive ‘locker room talk’, the more likely people may be biased into thinking a crime like sexual harassment is normal and OK.” [8] The culture created through everyday acts like these is hence one that treats sex as something men win, and that puts pressure on women to go along with demeaning behaviors.  

Additionally from challenging the existing laws and behaviors previously discussed, the idea of the rape culture therefore bears witness to the important actions that aren’t considered criminal but play decisive roles in the sexual violence women face in developed countries. Furthermore, it seeks to encompass women’s perspectives in building definitions of sexual assault that represent the experience of the victim, and understands the context of sexual violence, rather than treating it like an isolated case occurring in a vacuum.

Although it has not yet been fully introduced in European states, the concept of rape culture has started to have an impact on the way North American countries like the US or Canada are deciding to educate younger generations on rape and other sexual offenses - for instance through ‘consent workshops’ at university, that strive to break down preconceived ideas, and paint more realistic portraits of sexual violence - or in the way women’s rights are approached by international organizations like the United Nations, whose UNwomen campaign for ending violence against women is infused with ideas on rape culture. [10] However, these efforts do not seem to suffice, as meaningful legal change has not yet been enacted in developed countries, and blatant cases of aggravated rape continue to end in low convictions with the purpose of protecting the perpetrator. This is illustrated by the Brock Turner case, in which a Stanford university student accused of assaulting an unconscious woman was sentenced to six months in prison, which many condemned as being too lenient. [11]

Conclusion

In light of all the points examined above, the need for a definition of rape or sexual misconducts that is adapted and understanding of rape culture, and defined by the victims rather than the perpetrators, becomes clear. As Irving states, “a better awareness of what constitutes rape is urgently needed”, and one can hope governments, NGOs, and IOs will now actively work towards this goal, following the important attention the topic has recently received. [12] What is needed is both legal change, through the suppression of victim-blaming laws that overtly or insidiously protect sexual offenders, and educational revisions, to teach consent and explain the rape culture context, in the hopes of shifting the discourse and altogether changing the culture.

 

 By Manon Fabre - Research Assistant at CIPADH

 

Bibliography

[1] United States Department of Justice. Sexual Assault. Retrieved on November 6, 2017 from https://www.justice.gov/ovw/sexual-assault

[2] The Guardian. Prosecuting sexual assault: 'Raped all over again'. Retrieved on November 6, 2017 from https://www.theguardian.com/society/2013/apr/13/rape-sexual-assault-frances-andrade-court

[3] IBID

[4] The Guardian. When I was raped as a student, the police barely helped – and nor did the university. Retrieved on November 6, 2017 from https://www.theguardian.com/commentisfree/2016/mar/29/raped-university-police-reaction-urgent-change

[5] The Advocates for Human Rights. National Sexual Assault Laws. Retrieved on November 6, 2017 from http://www.stopvaw.org/637c7df2-04b8-4a8b-97f6-97c2f4570378

[6] The Guardian. 'No doesn't really mean no': North Carolina law means women can't revoke consent for sex. Retrieved on November 6, 2017 from https://www.theguardian.com/us-news/2017/jun/24/north-carolina-rape-legal-loophole-consent-state-v-way

[7] MacKinnon, C. A. (1989). Towards a feminist theory of the state. Harvard University Press.

[8] WAVAW. What is rape culture? Retrieved on November 7, 2017 from https://www.wavaw.ca/what-is-rape-culture/

[9] Self. What Is Sexual Assault (and What Isn't), According to the Law. Retrieved on November 7, 2017 from https://www.self.com/story/sexual-assault-definition

[10] UN Women. Facts and figures: Ending violence against women. Retrieved on November 7, 2017 from https://www.unwomen.org/en/what-we-de/ending-violence-against-women/facts-and-figures

[11] The Independent. Stanford rape case: Read the impact statement of Brock Turner’s victim. Retrieved on November 7, 2017 from https://www.independent.co.uk/news/people/stanford-rape-case-read-the-impact-statement-of-brock-turners-victim-a7222371.html

[12] The Guardian. I recreated my rape scene to show why sexual consent lessons are crucial. Retrieved on November 7, 2017 from https://www.theguardian.com/commentisfree/2016/oct/14/rape-scene-sexual-consent-lessons-universities

 

Category: