All entries for Wednesday 11 April 2007
April 11, 2007
Writing about web page http://comment.independent.co.uk/commentators/article2439494.ece
Dr. Sarah Churchwell has kindly allowed us to reproduce her commentary, ‘The law on rape remains asinine and archaic’, for the benefit of our delegates. It was published on 11th April 2007 in The Independent and we thank her for allowing us to post it here.
The law on rape remains asinine and archaic
In both the UK and the US, the law continues to sympathise with the defendant and slander the victim
One of the most grotesque aspects of rape law on both sides of the Atlantic is how fossilised it remains. Last week a United States congressman debating a bill that would deny paternity rights to rapists whose victims conceive a child quoted Sir Matthew Hale, England’s Chief Justice in the 1670s, who opined: “Rape is an accusation easily to be made, hard to be proved, and harder yet to be defended by the party accused.”
Charged with insensitivity, Congressman Vallario has continued to defend his archaism as a “history lesson”. For victims of rape, history is a nightmare from which society needs to awake; far too many lawmakers appear to have been snoozing peacefully for centuries. (Perhaps this has something to do with the fact that women make up 20 per cent of the UK Commons and 16 per cent of US Congress?)
Rape law in the United States and the United Kingdom continues disproportionately to sympathise with the defendant and to blame, slander, or otherwise discredit the victim. This week’s latest gem, courtesy of the Government’s drug advisers, advises women to avoid going alone to social events in order to protect themselves against rape.
Clearly these people have never seen The Accused : if you’re a woman, there isn’t necessarily safety in numbers. A woman going to a party alone: now there’s some seriously reckless behaviour. If she happens to walk on a street in order to get home, maybe we can call her a streetwalker and absolve ourselves of any collective responsibility for her safety whatsoever (I am thinking in particular of the columnist who wrote after the Ipswich murders that strangulation should be regarded as an “occupational hazard” for these “disgusting, drug-addled street whores”).
These latest recommendations come in the wake of reviews about the role of drink and drugs in prosecuting date rape. Recently, the senior jurist Sir Igor Judge was quoted as explaining that if a woman is incapable of giving consent, then sexual intercourse with her amounts to rape; if she is capable of giving consent and does, sex with her is not rape.
No doubt this point seems uncontroversial, but it raises a big question about the notion of “consent” as some immutable, irreversible permission. Even if she consented when they “started having sex” (whatever that means: kissing? fondling? penetration?) isn’t it possible that before they “finished having sex” (before which one has finished having sex? How do we define finished? ejaculation? orgasm? loss of interest?) she might change her mind in medias res?
The law would seem not to think so. But what if she changes her mind because he started smacking her? Because he wanted to indulge in behaviour that she found uncomfortable, unsavoury, or frightening? If he continues, when she has told him to stop, then surely there is a strong moral argument for saying that he raped her, despite her having initially “given consent”.
But for the moment let’s pretend that a woman “consenting” to sex is like signing up for satellite television, and that she is bound by her decision for a period to be determined by the other party in the transaction. The real problem is what Sir Igor Judge revealed about how consent is legally determined: “If, through drink, or for any other reason, the complainant has temporarily lost her capacity to choose whether to have intercourse, she is not consenting,” he clarified. “Subject to questions about the defendant’s state of mind, if the intercourse takes place this would be rape.”
Subject to questions about the defendant’s state of mind – not the accuser’s. British and American rape law, uniquely in criminal cases, hinge on the asserted state of mind of the alleged criminal, rather than on the perceptions of the alleged victim.
If she has lost her capacity for consent (i.e., she is semi-conscious or unconscious), and he takes that as a lucky break and has sex with her, then the court sets out to determine what his state of mind was. If he could “reasonably” have concluded that consent was given, then he is legally not guilty of rape. Instead of determining whether a defendant committed a crime, the court must determine whether the defendant believes that he committed a crime. Granted that any case of date rape is going to devolve into her word against his (assuming heterosexual rape; there is still precious little attention paid to the very real crime of homosexual rape), the question is not solved by making him the arbiter of her state of mind.
In 1977, according to one report, about a third of all rape cases in the UK ended in conviction. Thirty years later, the conviction rate has dropped to 5.31 per cent, despite the fact that 4,000 more women have reported rape between 2002 and 2005.
A few months ago, British audiences were treated to the spectacle of Michael Portillo, Jeffrey Archer and Stan Collymore pronouncing on a mock rape trial on the BBC’s The Verdict . Portillo asked why a woman would go to a man’s hotel room if she didn’t intend to have sex with him. As if that weren’t asinine enough, Collymore insisted that footballers don’t “need” to rape because they can have sex with any woman they want. The woman’s consent evidently remains a foregone conclusion: obviously, Sir Matthew Hale knew whereof he spoke.
The author is senior lecturer in American Studies at the University of East Anglia
A NOTE ON EDITORIAL POLICY: ‘Women Writing Rape: Literary and Theoretical Narratives of Sexual Violence’ was set up to discuss literary and theoretical narratives of rape around the world (not just in the UK) and we are looking for responses that comment on rape narratives and their literary constructions or theoretical trajectories. Some of the comments being made here are not focussing on the issues demanded by the blog and any further declamatory comments after no. 25 will be deleted.
Writing about web page http://www.timesonline.co.uk/tol/news/world/iraq/article1622986.ece
In Germaine Greer’s article, ‘Rape’ written for The Independent and in Zoë Brigley’s response to that article on the blog for the ‘Women Writing Rape’ Symposium both Greer and Brigley raise crucial questions about what constitutes ‘rape’ and also how rape is perceived in both social and legal spheres.
Just how relative these questions are is clearly evidenced on the cover of The Sunday Times Magazine ( The Sunday Times, 8th April 2007) where a photograph of a woman in army uniform is coupled with the caption:
Sleeping with the Enemy: One in 10 US soldiers in Iraq is a woman. And insurgents aren’t the only threat. There, ‘you’re either a bitch, a whore or a dyke.’ Seven veterans tell their stories.
Inside the Magazine journalist Sara Corbett, tells of the war in Iraq as experienced by these seven women soldiers in an article titled “Battle of the Sexes”. The ‘enemy’ referred to on the cover of the magazine are not the insurgents, but the women’s colleagues and superiors in the army; men supposedly fighting on the same side as their female counterparts. Whatever your personal feelings about the so-called ‘War on Terror’ are, this article takes an important look at women who are subjected to sexual assault and rape perpetrated by their own colleagues, and in many cases their bosses.
In ‘Battle of the Sexes’, Corbett investigates how prolific rape and sexual abuse are in the army and how many women soldiers suffer from Post Traumatic Stress Disorder as a result of “sexual assault and combat”. She claims that “[a] report financed by the Department of Defense revealed that nearly one-third of females veterans seeking health care through the VA [Veterans Affairs] said they experienced rape or attempted rape during their service. Of that group 37% said they were raped multiple times, and 14% said they were gang raped.”
As is the case with Greer’s article, Corbett also highlights the startling ineffectiveness of the authorities in dealing with the cases of rape that are reported: “there is a pervasive sense among the victims that reporting a sexual crimes is seldom worthwhile. Department of Defense statistics seem to bear this out: of the 3,038 investigations of military sexual-assault charges completed in 2004 and 2005, only 329 of them resulted in a court martial of the perpetrator. More than half were dismissed for lack of evidence.”
Corbett’s article is important in several ways that are pertinent to the investigations and aims of the ‘Women Writing Rape’ Symposium.
Firstly, she asks questions about the role of women in the military, especially in situations of active combat. Most of the literature on rape and sexual assault in conflict situations focuses on ‘local women’. Corbett draws attention to women on the other side of the conflict who also experience sexual violence, but at the hands of their own colleagues and not the officially demarcated enemy. This issue also extends out of conflict zones to broader questions of sexual assault in the workplace.
Secondly, Corbett also focuses on what does, and what should, constitute ‘rape’. How both victim and perpetrator define and construct rape is an important factor especially as the concept of shame is so closely associated with the victim in rape cases. Take one of the cases highlighted in the article for example: “As is often the case with matters involving sex and power, the lines are blurred. Swift does not say she was raped, exactly, but manipulated, repeatedly, by a man above her in rank – and therefore responsible for her health and safety.”
Intertwined with the questions of what exactly constitutes rape is the failure of the authorities, whether military or civilian, to investigate and prosecute cases of sexual violence and rape. By fostering a culture with such low conviction rates, where the victim is often the one put on trial, are the authorities sending out the message that it is easy to get away with rape and thereby complicit in the systematic rape of women?
The Welsh-French poet, Pascale Petit, is frank in interview in discussing the pain and difficulty of her childhood. As a girl, she suffered an abusive father and a mentally ill mother. In interview, Petit writes of the difficulty in writing about personal history: ‘In the UK, very personal intense poetry is treated with suspicion by some. However, I write what I am compelled to write, and hope that explorations of my childhood “private hell” are of relevance to readers.’ Fellow Welsh poet, Deryn Rees-Jones, also recognises the problem of writing confessionally and summarises the politics of it in her recent study, Consorting with Angels :
The woman who confesses is frequently read as testifying only to her anguish and her own “weakness”; she is simply revealing the awfulness of femininity which was known to be there all along, and which, in the most simplistic terms has led to her oppression in the first place. And it is here that we see the exact nature of the problem: for if the woman poet does remain silent, if the awfulness of her confessional truth is such that it will only oppress her further, she is left where she started and cannot speak at all. Alternatively, she can speak a version of self which also confirms a certain kind of femininity – that of beauty passivity, orderliness and self-control – but which nevertheless fails to “tell it like it is”. (Deryn Rees-Jones, 25)
The question is, how is the woman poet to ‘tell it like it is’ as Rees-Jones puts it and yet avoid such negative connotations. Can the woman who suffers rape or abuse manage to tell her own story without being seen as self-indulgent?
Petit answers this problem by moving towards communication, dialogue and knowledge of others. She states: ‘There are entire countries undergoing private hells much worse than mine, but in a first world country this is sometimes forgotten’. Petit continues providing an anecdote about the view of others about her poetry:
I was in Lithuania recently, and someone there at a conference compared my poem ‘My Father’s Body’ (where I shrink him to reduce his power) to a Lithuanian regaining power over a KGB agent. He said the particularity of the content of that poem wasn’t important. What was important was what the poem was doing, and how readers could relate it to injustices in their own lives.
The ‘particularity’ of the poem is transcended here for the Lithuanian, a male subject of an other sex and an other culture, yet it is clear that he understands the injustice described by the poem. This idea of cross-cultural, gender crossing exchanges in Petit’s poetry are integral to the kind of confessions that she presents. Empathy is at the heart of her poetics. Consequently in her recent collections, Petit has identified her experience of sexual abuse as a child not only with the destruction of nature (the Amazon rainforest), but also with the oppression of minor cultures (indigenous tribes in Latin America) and cult figures of suffering (the Mexican artist, Frida Kahlo). By adopting the mask of another cultural tradition or another woman’s life, Petit disciplines the emotional content of her poems and she makes her depiction of ‘private wars’ as relevant as public conflicts.
For further information, please see Petit’s website: http://www.pascalepetit.co.uk/
Or see this link for a list of web resources on Petit: http://blogs.warwick.ac.uk/zoebrigley/entry/resources_on_pascale/