deviance, rape culture, and the courtroom
This post is cut because it is heavily triggering. I will discuss rape culture, rape trials, the criminal justice system, and mistreatment of rape victims. This is NOT an introductory level post. If you are unfamiliar with ANY of the concepts above, go handle your prerequisites. This is a post which will focus on male violence against women not because no other kind of rape exists, but because this type of rape is both the most frequent and the most frequently brought through the criminal system. It is also intentionally US-centric, because I’m only comfortable discussing US law (and only marginally at that), but as rape culture is a global phenomenon, perspectives from around the world are welcome as long as they come from an anti-rape perspective.
There’s some interesting stuff going on this old TNC post (my initial reaction can be found here) which was about some unpleasantness in his comments section concerning his rather - and to his credit, admittedly - tasteless reporting on the Roethlisberger rape case. He brings up what he refers to as BR’s entitlement to a “presumption of innocence” not in a courtroom, but in the court of public opinion. There’s a lot of interesting issues which make the post well worth a read, as it concerns the right and wrong ways to discuss instances of oppression where you are a person of relative privilege as pertains to that particular instance. It was a long time ago, and I wish I’d been able to respond to it in a more timely manner. Unfortunately, at the time, I was in the middle of finals ( WHICH I WILL NEVER BE AGAIN OH MY GOD) and so all I had time to do was post some tweets in response to the more problematic issues raised (again, extremely casually) in the post.
The first of those issues is the problem of the presumption of innocence in rape trials in general.
This is an issue I’ve actually wanted to write about for some time. I honestly have my doubts as to whether it is ever appropriate, though I don’t see a constitutional way around it. I think the issue should be raised and understood honestly in order to work through how best to deal with this very serious problem.
It's worth considering a little bit of American legal history here. The presumption of innocence isn’t good because we use it and we’re the jam, we use it because it’s good, and we should remember that it didn’t come out of nowhere. It reflects the social and philosophical decisions of the men who wrote the constitution, and which is fairly apparent from a look at the history of colonial and early American criminal law. That matters, and not just because they were men of some power, and therefore (then as now) quite unlikely to be raped, and would likely never have recognized a sexual assault against themselves as such.
When we consider crimes in general, the society from which the jury pool is drawn is likely to be one which looks unfavorably on people accused of crimes. We assume you wouldn’t be there if there wasn’t a reason. That’s not the rank bigotry it sounds like - leaving aside the wisdom of particular criminal laws, the vast majority of defendants brought up on charges are guilty. We have to tilt the scales towards the defendant to make up for this pervasive social perception, whether or not it is true, just to ensure that the defendant gets a fair trial.
But we don’t think that way about rape. We victim-blame and not-my-Nigel and raise the bar on “true suffering” to an impossible extent specifically in order to deny the possibility that a particular man has committed one or several particular rapes. In a jury trial, where a defense attorney (appallingly) may put the victim’s behavior on trial, the alleged (overwhelmingly probable) rapist is presumed to be a victim, and the victim presumed to be a legal aggressor by pressing charges.
To raise this to the level of the operative social and political systems, most violent crimes, now and in the age of the Founders, are socially deviant behavior. In this context, “deviant” doesn’t mean morally right or wrong, simply “in contravention of social norms.” Therefore, criminal defendants are very likely to have violated a social taboo, and therefore find very little quarter with the jury, regardless of actual legal innocence or guilt, let alone level of morality. Human beings tend to distance ourselves from social transgressors. The Framers, many of whom were around for the American Revolution when they committed one of the biggest taboos of all - outright rebellion - and therefore had some insight into what it’s like to be the deviant party.
For the most part, punishing deviance makes sense, right? We have to have some commonly agreed-upon behaviors in order to have a functioning society - and we have to agree on some things we don’t do. We don’t like people who steal because we value private property. People who use the wrong recreational drugs are deviant because we fear people who choose the wrong kinds of ways to relinquish psychological control. We don’t like people who murder because we value human life. In the early part of the twentieth century, birth control activists were deviants because they facilitated sexuality unencumbered by pregnancy and thus fundamentally altered gender norms as they existed at the time. Deviants may not be morally bad, or they may be deeply evil, but they’re likely to find themselves re-classed as criminals.
Ideally, we’d have a society where “harmful/immoral” and “deviant” were one and the same, but we don’t. And this is the crux of the issue. We live in a rape culture, where rape is not a deviant act, but rather one which is both expected and condoned. It is deeply intertwined in the social fabric of most, if not all, societies existing in the world today. Individually, few openly admit it, but many people support the phenomenon of rape, and therefore treat rape defendants preferentially, rather than with the hostility granted to socially deviant defendants.
This is all by way of saying that when we stopped treating rape as a property crime and started treating it as a violent crime against the person, this signified a fundamental change in the social dyanmics of criminal justice because we decided to punish behavior based solely on its moral wrong and not on its level of social deviance. Rape culture constructs a society which supports rapists and condones rape. Rape is not deviant behavior in a rape culture. It is minority behavior, to be sure, but it is not deviant behavior. This is in tension with a criminal justice system which punishes deviance more than immorality or actual harm caused. Rapists enjoy a protection from the society from which juries are drawn that other criminal defendants simply do not. Without discussing the constitutional issues surrounding the presumption of innocence as it pertains to rape cases, there is simply not the policy justification which exists for a presumption of innocence in other crimes.
This doesn’t mean that the criminalization of rape was the wrong thing to do, or that it will in the long run be ineffective. We’re starting to succeed in recognizing stranger rape as deviant behavior, although we’re still more likely to do so explicitly with social groups who are already considered non-normative. It is slow and harsh progress, but progress on the correct trajectory nonetheless. It does, however, mean that while rape should be punished like every other crime, the relationship between offender and culture is, as a social phenomenon, not like any other crime. Because players in the criminal justice system, from police to bailiffs to juries to judges, are drawn from society and not from the morally enlightened ether, this means that a rape case is distinctly and crucially different from any other criminal case.
And rapists know this. I shall harp on predator theory on every post I ever write on the subject of sexual assault, because it is so critical to the way sexual assault happens. Rapists know that as long as they do not commit deviant (stranger) rape, their actions will be excused and even openly condoned. Moreover, they make use of their victims’ morally neutral social deviance - in the case of teen and young adult women, drinking, though there are many others - in order to comply as best they can with the rules of rape culture (which are different than the criminal codes) in order to escape sanction. That’s infuriating on a lot of levels that I’m sure I don’t need to re-hash if you’ve made it this far through this post, but I look at this as a long-term good sign. What this means is that the decision-making of rapists and potential rapists can be altered by laws, public policy, and social stigma. Right now they’re not following the law so much as the social norm that certain types of rape are acceptable - if we can convince a critical mass of people that rape is always rape, we can in fact create a social norm which will deter more rapists even further, and continue to decrease the number of rapes.
For a concrete example of an acquaintance rape case under current social mores, take the BR case. BR’s record (that we know about!) combined with his use of behavior common to predatory acquaintance rapists suggests that he operates in a similar manner. This person finds himself in a situation where the offender’s social role was to perform masculinity by taking power over a sexual situation with a socially desirable young woman. What BR did was condoned by most of society, and is performed with great frequency by a small but significant number of men. Legally he committed a crime; he has violated any respectable code of morals and ethics, but he is not socially deviant by the rules of rape culture.
However, it is not legally condoned, and so he has to take steps to protect himself from sanction. He ensured that the young woman was drinking - a gender role misdemeanor deviant activity, but still, a strike against her social credibility as well as her mental capacity, ability to resist, and chances of placing blame with him and not with her, and depending on the age of the victim, criminality.
It’s important to remember the converse rule of rape culture, which is that women are supposed to be shamed, blamed, and responsible for sexual assault. A woman who reports rape is breaking the social rules of rape culture, which command that victims be shamed out of blaming the accuser for the attack. She is morally admirable and legally within her rights, but in a rape culture, she is socially deviant. It can’t be said enough that this isn’t meant to indict victims who come forward, but to highlight the perversity of a society that does not respect their suffering and their courage. The decision not to report is both the most common decision and the socially normative decision, because socially, we value our ability to sweep the massive problem of sexual violence under the rug far more than we value justice for victims.
And when we apply this hypothetical case to courtroom dynamics and criminal laws, we have a whole mess of arrows pointing all the wrong ways, and this is why the presumption of innocence is troublesome in rape trials. Because we live in a rape culture, where sexual violence is to be both expected and condoned, the defendant is not the deviant party. Because we live in a rape culture, where victims of sexual violence are assumed to have brought it on themselves, the choice of the people’s strongest witness to bring the case first is a deviant behavior because it breaks the social rule of silence and shame. She is also deviant (though again, in the vast majority of her peers) for having consumed alcohol.
The presumption of innocence therefore does but little work to protect the defendant, who stands accused of something morally abhorrent and unquestionably illegal, because he has followed the rules of rape culture. These expectations influence everyone in the criminal justice process, but (assuming this is one of the very few cases which goes to trial) most importantly the jury. It’s neither the time nor the place for this digression, but I can assure you that at every step of the way during my legal education, the enormous problem of sexual violence was minimized, framed in terms of a lying accuser against a beleaguered innocent alleged rapist, and more than once treated as a joke. Our entire legal system is built by professionals who are explicitly trained to perpetuate rape culture. This dynamic makes its way into the courtroom through every door, not just the one leading into the jury box.
Legal professionals do matter, of course, because they we they fuck! attorneys are the means by which rape apologia makes its way into the courtroom. The defense of consent, which is often raised in such cases, becomes viciously warped, because the jury will have to make a decision about the trustworthiness of a witness who again has done nothing morally wrong, nor acted in any way to suggest that she is lying, but who has nevertheless broken twice with social convention (being a rape victim, and refusing to protect the man who raped her). Once the defense of consent is raised, the defendant only has to show what is already socially presumed to be true: that she’s a liar who had it coming.
Essentially, rape culture gives damned near every accused rapist dozens of ways out of the criminal system. Victims don’t report, in perfectly rational anticipation of punishment for breaking the code of silence. Those who do report are subject to re-victimization by the police. They are then subjected not only to the presence of their rapist in a court of law, but to a punishing recitation of every iteration of “she had it coming.” It doesn’t matter whether rapists are presumed innocent, when they rape in a society which isn’t actually convinced that rape is wrong.
2. The conflation of the presumption to innocence given to a criminal defendant as a matter of constitutional law and some sort of journalistic “presumption of innocence.”
The issue of how the press does - and how the press should - treat rape cases is a huge part of the problem above, but it’s also its own separate issue, which delves into issues of journalistic ethics, politics, and neutrality.
It does not, however, have anything to do with the constitutional presumption of innocence, already problematically given to the offender in the courtroom, and it is misleading and irresponsible for journalists to use this language as their guiding principle for rape reporting. It suggests that the facts of the case as presented by the press should be treated not as a neutral presentation of all available facts, but rather as the pre-screened small portion of facts which are admissible into evidence in order to protect the presumption of innocence. Journalists are not there to protect the public from knowable facts; in fact, the are there to do quite the opposite.
The use of constitutional language is quite as misguided and improper as when right wingers who find themselves challenged on their hate speech claim that their right to free speech shields them from criticism. In a non-legal situation, these highly specialized constitutional terms mean little, and they are often used in such a way as to hinder the honest discussion necessary to uphold the democratic ideals enshrined in the constitution.
So the conflation of constitutional mandates with the behavior of individual bloggers is a bizarre misuse of a term of art with a very specific meaning. (It’s hard not to point out the hubris that someone who deigns to comment on a third-tier blog entry needs to have in order to conflate their duties with the entire US justice system in order to bravely show their support for rape culture.) But it’s also deeply harmful in that it reinforces the social dynamic above, because it requiers victims to prove themselves in the court of public opinion in order to call their rapists what they are.
Journalism covering rape is inherently different than of other crimes, violent or property. In the case of a physical attack, you’re unlikely to see a reporter openly wondering if an attack actually took place, or if in fact the victim in question asked to be attacked. There can still be a presumption of innocence for a particular defendant (i.e. “the alleged perpetrator claims to have been in New York/Papua New Guinea/his mistress,” whatever) because many of these attacks will be stranger attacks. (It’s not surprising that DV reporting follows a similar pattern and has similar dynamics, even if these cases are less likely to get media attention.)
Moreover, this is an explicit attempt to marginalize journalists with feminist politics in favor of journalists with patriarchal politics. There is no neutral in a world where the status quo is so wildly unequal as that provided by rape culture. The idea that remaining “neutral” in the face of a great deal of forensic evidence and the world of the victim allows for some sort of abstinence from opinion is a socially irresponsible fiction, and I applaud those writers who stand up against it. The simple act of believing a rape victim, the same as the victim of any other crime, is a hugely political act - equally as hugely political as choosing to compound the trauma of a rape victim by harboring the shameful rape culture myth that she is lying.
The equivalence just isn’t there to justify the same burden of persuasion that exists in the criminal justice system. Even if we did, as a society, stigmatize rape in the way that we should, mere allegations in a paper or on a blog do not carry the weight of a criminal conviction. The press is supposed to give us information to decide as rationally as possible what we as citizens think is probably occurring in our society. By giving credence to the lie that victims cannot be trusted, the mass media ensures that women will not be trusted.
I considered splitting these thoughts up into two posts, but really, that would’ve been inappropriate. Because the particular dynamics of rape trials, which are informed by rape culture masquerading as “journalistic ethics,” inform public opinion, which means that they create the reality of rape culture in subsequent cases and potential cases. Openly favoring the word of a likely rapist over a likely victim upholds both the normativeness of the rapist and the deviance of a woman who insists that what has been done to her is wrong.
This percolates into the criminal justice arena. Women don’t report because they read the paper, and know the horrific level of scrutiny to which they will be subjected. Police give those women who do come forward a more critical treatment than other victims, as do attorneys (including, my future ADA friends assure me, prosecutors) and, in the very few cases where necessary, jury members.
What we have created - largely through the willingness of the legal system and mass media to not only perpetuate but compound rape culture - is a system of publicly “dealing” with the problem of rape which not only fails to reflect the reality of sexually abusive actions done by perpetrators onto victims, but in fact is directly responsible for many of the myths that allow sexual violence to continue. Our media and criminal justice system protect and support rapists, every step of the way. We don’t need - we can’t afford - to be so very generous with the benefit of the doubt.