Last week a retiring judge was criticised by campaign group End Violence Against Women for saying that women are entitled to do what they want with their bodies and that men should change their behaviour accordingly.
Most people would see that as a cause for praise but, sadly, when it was followed by:
…please be aware there are men out there who gravitate towards a woman who might be more vulnerable than others…
…and was delivered at the end of a rape trial, there will always be people out there who think it was simply victim blaming because they only read the bit they want to see.
As Judge Lindsey Kushner QC pointed out, there are many crimes that simply shouldn’t happen but that do. That’s why they’re crimes – society says that they’re inappropriate actions but people do them anyway, so we punish the perpetrators for doing it. Judge Kushner highlighted burglary – we know it shouldn’t happen but it does so we think it’s a good idea to lock our doors.
This is the whole of Judge Kushner’s speech at the end of sentencing:
We judges, who see one sexual offence trial after another, have often been criticised for suggesting and putting more emphasis on what girls should and shouldn’t do than on the act and the blame to be apportioned to rapists.
There is absolutely no excuse, and a woman can do with her body what she wants and a man will have to adjust his behaviour accordingly.
But as a woman judge, I think it would be remiss of me if I didn’t mention one or two things.
I don’t think it’s wrong for a judge to beg women to take actions to protect themselves.
That must not put responsibility on them rather than the perpatrator – how I see it is burglars are out there, and nobody says burglars are OK, but we do say “please don’t leave your back door open at night, take steps to protect yourselves”.
Girls are perfectly entitled to drink themselves into the ground but should be aware people who are potential defendants to rape, gravitate towards girls who have been drinking. It should not be like that but it does happen and we see it time and time again.
They do it because, first, a girl who is drunk is more likely to agree as they are more disinhibited even if they don’t agree they are less likely to fight a man with evil intentions off.
Even if they manage to have their way with a girl or woman without her consent the likelihood is she will be less likely to report it because she was drunk or cannot remember what happened or feels ashamed to deal with it or, if push comes to shove a girl who has been drunk is less likely to be believed than one who is sober at the time. I beg girls and woman to have this in mind.
They are entitled to do what they like but please be aware there are men out there who gravitate towards a woman who might be more vulnerable than others. That’s my final line, in my final criminal trial, and my final sentence.
However, I think it’s also important to note some of the comments she made during sentencing as reported by Metro:
After hearing the victim had drunk vodka and lager and had taken the party drug amyl nitrite, Judge Kushner told Gomes [the defendant]: ‘It’s up to any woman to decide what she wants to do with her own body.
‘If she wants to go out on the town and meet somebody and have sex with them within an hour, that’s up to her – it’s her privilege.
‘But that’s not a signal for anybody to do what they like to her if she doesn’t want it.
‘That’s what you did, she was interested in your friend and she was a willing participant in certain circumstances to having sexual relations with him but she wanted it in circumstances of discretion and not in the public street, and wanted it with him and not anybody else.’
She added: ‘To be quite honest the public has to know and men have to know that just because a girl may be agreeing to sexual intercourse to ones person, that’s not an open invitation for anyone else to pile in on the off chance, otherwise it becomes rape.’
As well as jailing him for six years, Judge Kushner ordered Gomes to sign the Sex Offenders Register.
Here’s where I get in trouble for being male, but isn’t the judge entirely right in everything she said? Isn’t there fair and even and balanced opinion with sound advice? Didn’t she do the right thing?
There was another rape case last week in which defendant Lewis Tappenden was acquitted. He’d met his alleged victim in a bar. Tappenden had drunk three beers and three triple vodka and cokes. She had been drinking for six hours and had downed six bottles of Blue WKD, three Sour shots, two vodka Red Bulls and had also been drinking cider.
Before meeting Tappenden, the accuser had told her friends during a drinking game that she was “going out to pull someone” that night. Another report put that comment at her being “intent on getting a man”.
As one of the accuser’s flatmates said in court, “It sounds bad, but is that what you do.”
In court, the accuser said that she was “dragged” from the bar but CCTV footage suggests otherwise as well as does an allegation that she told Tappenden, “I don’t want to know you afterwards, I just want to f*ck you”.
While he was throwing up in the toilet at her apartment, she changed her mind (sounds wise!) and ran to a flatmate to say that she was “OK” at the start but then things had got “weird” before she made the rape accusation the next day.
Sarah Baxter in The Times quoted American feminist Camille Paglia who said:
Despite hysterical propaganda about our “rape culture”, the majority of campus incidents being carelessly described as sexual assault are not felonious rape (involving force or drugs) but oafish hook-up melodramas, arising from mixed signals and imprudence on both sides.
Paglia would appear to have hit the nail of this case firmly on the head.
Not that I ever think I’ve been in a situation where I was close to being accused of rape, but I once had a friend who suggested I get drunk. She suggested it kind of jokingly as part of a kind of research to see how easily I could get drunk, being a non-drinker. I didn’t want to do it because if I’d have been getting drunk with her (as was the intention) I wasn’t sure whether I’d be able to respect previously provided limits.
Now, this isn’t why I don’t drink, so I’m not trying to be high and mighty here. However, I felt some responsibility not just towards my potential drinking partner but to myself for not putting myself in to a position to do something that I might regret.
It’s what annoys me when I see these comments like the ones from End Violence Against Women. It is simply unfair to remove all responsibility for one’s welfare and place it on to someone else when you actively choose to put yourself in a position whereby you are unable to properly communicate your intentions.
The case of Tappenden and his accuser highlights that it is even more unfair to move that responsibility on to one person who is equally incapable of judging everything that this happening, especially when that could put him in jail for something that his accuser wanted to happen 6 hours earlier.
Here, I can only echo what Judge Kushner says, and I’m not ashamed to do so – no person should ever take advantage of another full stop, let alone in forcing them to take part in something that they do not want to take part in. However, hiding behind shouts of “victim blaming” rather than taking even a small amount of responsibility where it is warranted is a dreadful message to be sending out. We wouldn’t do it with burglary, so why do it here?
Judge Kushner, in finding her defendant guilty, proved that drink is not a stone wall defence in all rape cases. To criticise the Judge for then providing sound, fact based advice is ludicrous and, again, in other circumstances, would be seen as negligent.
Another comment made by a spokesperson for End Violence Against Women (reported in The Guardian) was that such victim blaming deters women from reporting genuine cases of rape for fear that they will not be treated seriously.
For me, this is another matter. I’ve mentioned before on this blog that rape cases are notoriously difficult by their very nature – there are often no witnesses which means that most of the prosecution would be one person’s word against the other’s. I don’t believe that any movement of burden of proof, either as “innocent until proven guilty” or vice versa will help this.
I also find the whole idea of express consent slightly absurd. Like I just suggested, in a case of one person’s word against another’s, what is the use of an oral contract made with no witnesses? Adding formality of witnesses or written contracts would somewhat kill the feeling. Where to place the boundaries of implied consent is hard, but I think implication should be suitable.
I wonder, then, if maybe the problem is actually in the reporting of rape cases in the media (and I think this point is far more moot than any others in this post, hence my venturing it).
We don’t see everything that happens in court. We don’t see court records or transcripts and we don’t see context. We see reports in the media that are limited to fit word counts or specific airtime. If it is in seeing only the “highlights” of cases that makes women think that reporting an assault is not worth it, should we share every detail – toxicology reports as well as every sordid little detail of what actually happened according to both parties (all made anonymous, obviously)?
Of course, the repsonsibility to know whether a case is worth bringing, in the UK, lies with the CPS. So if they aren’t doing their job effectively, should we go the other way? Should we not report anything other than the actual law, so that potential victims become free of prejudice?
Rape is the most heinous of crimes because it is deeply personal (despite the fact that modern culture removes much of the intimacy of the act). Because of how personal it is, it has the greatest capacity to destroy the lives of real victims, those found innocent of the charge and those for whom accusations have been unfounded in the eyes of the Law. Society is owed a good, proper process in its quest to eradicate this crime, but that process is staggeringly hard to find.
I fail to see how it can be harmed by trying to prevent rape happening in the first place, though.