Jane Caro: Why Just Speaking Up About Sexual Assault Isn't The Solution
I believe in the principle that everyone is innocent until they are proven guilty.
I think it is one of the most important principles we have in our justice system. I would rather a guilty person go free than an innocent person be wrongly incarcerated. Mistakes can happen, even in the best of systems, which is another reason why I have always been opposed to the death penalty. People have been executed for crimes they did not commit.
I am also a believer in redemption -- the possibility that even those among us who have committed the worst and most cruel of acts can be redeemed and forgiven. I do not believe that any human being is a monster although all of us, given the right circumstances, could behave in monstrous ways. My grandmother always used to say that to know everything is to understand everything. What she meant by that is that if you knew every moment of someone’s life, you would understand why they did what they did -- even those acts that appear utterly incomprehensible.
In other words, I am a bleeding heart. I do not think our justice system should be about vengeance or punishment. I believe losing your liberty can sometimes be necessary as a deterrent and as a prevention. If you have been so damaged yourself that you are a risk to others, you must be kept separate from them. I get that. But I don’t think our jails should be deliberately cruel or inhuman. I hope that people can emerge from their prison terms rehabilitated, although I know that we are not very good at that yet.
All of those dearly held beliefs are why -- as a lifelong feminist -- I find myself on the horns of a dilemma, especially since #MeToo.
I celebrate that women are at last accessing their anger about having been treated as prey (‘fair game’) for far too long by far too many men. I celebrate that women all over the world, from all sorts of backgrounds and of all ages have broken their millennia-old silence about what has happened to them in all sorts of environments -- at work, at school, at church, at play, in the streets, and especially at home. Most of what they have revealed is not strictly criminal, although no less damaging for that, but some of it most definitely is.
The problem arises when women and other victims -- child sexual abuse survivors spring immediately to mind -- decide, as is their right, to pursue their perpetrator via the criminal justice system.
The nature of sexual crimes is different from other kinds of criminal behaviour. It most commonly occurs between two people, in secret and in private. There are rarely any witnesses and, as is also common, if the crime is not reported immediately, there may be very little physical evidence. It is also common -- it may even be the most common response according to experts who work in the area -- for people to respond to sexual attack or even just unwanted intimate touching by freezing -- they don’t fight or try to flee due to all sorts of things -- including shock and, of course, the fear that doing either may lead to further injury or worse.
Survivors of sexual abuse (and yes, #MeToo) often talk about the shame they feel because they just froze in shock and did not immediately call a halt to the behaviour. This can lead to miscommunication, or so it is often argued, anyway, and is why feminists are now so adamant that positive consent is required before any sexual intimacy can take place. But that is new.
When I was young, it was acceptable behaviour for men to push a woman to see how far they could go.
It was considered our job to call a halt. We had to give a positive dissent when I was a girl, and if you didn’t say no, that was taken to mean yes.
#MeToo has encouraged many women and other victims of sexual assault and abuse to come forward about their experiences and that on one level is a good thing -- silence protects perpetrators, speaking up protects the vulnerable.
The trouble is, the justice system, the wonderful principle of innocent til proven guilty, do not serve complainants as well as they serve the accused.
The ‘he said/she said or he said/he said’ nature of these crimes make them as much a judgment on the accuser as the accused. If the accused person is found innocent -- in other words their legal guilt cannot be proved beyond reasonable doubt -- the accuser is ipso-facto seen as being a liar, a malicious complainant or just crazy. Not legally, of course, but by the public.
After all, why would anyone take false accusations as far as this unless they were one or more of the above?
The situation survivors of sexual assault and abuse now find themselves in reminds me of the plight of victims of domestic violence. We have become very adept at drawing attention to these previously hidden crimes and -- even with my reservations -- I think that is a good thing and represents real progress. However, while we have enthusiastically encouraged victims to report both sexual abuse, even crimes that occurred decades ago, and domestic violence, we have not solved the problem of what happens then.
Domestic violence survivors often find themselves in financially desperate straits and with nowhere safe to go, particularly since we have dismantled so many women’s refuges. Sexual abuse survivors run a risk of feeling doubly abused -- judged as a crazy liar, particularly given the low rate of conviction for alleged sexual crimes despite rising rates of reporting.
I have no answers for this dilemma. I am not a lawyer and do not pretend to understand how to legally solve either of these problems. Maybe we need special courts or some form of restorative justice as we now are beginning to do with drug offences and juvenile crime. All I do know is that we cannot pretend that just encouraging survivors to speak up is a solution on its own. If we do that all we will achieve is to drive victims back where they came from -- into silence, shame and danger.