Rape and the Legal System – Imagining Equality

Many feminists have made an issue out of rape, and other forms of male violence against women (domestic violence, harassment, etc). I won’t rehearse or repeat their statistics or arguments – that rape is widespread, that it is underreported, that when it is reported the police are often unsympathetic or traumatically probing, that at trial the survivor is themselves interrogated, and if found to be a slut loses the case, that she almost always loses the case anyway (the conviction rate is something like 4%).

I think partly this is about the structure of our legal system. Partly, of course, it reflects social attitudes (even among women, rape myths are widespread). And partly it reflects the fact that the vast majority of lawyers, judges, police, and politicians are male. That is something which definitely needs to be changed – for power to be transferred,  positions that carry power must be occupied. But I think there is an independent strucural issue.

The legal system does not work very well for rape, or for domestic abuse, because:

1) it assumes that the defendant and plaintiff are both self-supporting, independent, individuals, rather than deeply enmired in relations of dependence. It assumes that the plaintiff does not live in the defendant’s house and will be able to relate to him or her antagonistically without thereby becoming homeless.

2) it assumes that conclusive evidence can be brought to show that the crime happened. This works quite well for murder, where someone will usually habeat corpus, and for injury or theft it will usually be clear that a crime has occurred. For rape though, not so great. Especially if the defendant and plaintiff did in fact have sex at other times, or looked like they might for a while, it is unlikely that any conclusive evidence will appear that will allow for a decision.

3) because it assumes that evidence and argument will usually yield the right answer, it encourages an antagonistic stance for the two parties – they are to argue with each other, for strongly contrasting, consistent versions of the truth, which they generally will make as different from each other as possible. There is little incentive for either party to amend or adjust their version of the story – little incentive for them to concede or end up agreeing on things. This doesn’t work as well when the people involved have an emotional relationship as it does when they are two idependent upstanding citizens.

4) similarly, it assumes that the people involved will be not just mentally healthy but of superlative emotional strength – they will be able to report the crime promptly, they will not contradict themselves, they will be able and willing to recount every detail of what happened to them in front of a room full of strangers.

5) our legal system rewards people with money. That is a fact with ramifications far beyond sexual issues, but it is important here as well. If you have money you are more able to get legal protection.

6) our legal system tends to bifurcate the punitive options. either you get a relatively serious sentence, or you get acquitted. this works in tandem with point 2) – it means that unless you have a very convincing case, nothing will happen, and even if you do have a convincing case, you need to be willing to see the other person (who you may still have strong feelings around) go to prison (where, at least at the moment, they are quite likely to be raped).

To sum it up, our legal system is designed to work for people raised from birth to be self-assured, calm, articulate, dominant, insensitive, and rational. It is designed for people who are never victims within an intimate context, because in intimate contexts they hold the power, and thus they are only victimised in public, by other people like them. It is designed around the public-private divide. It is not designed for men, because men could in some societies be the victims of as much rape as women. It is designed for men-in-patriarchy, men who are ‘paterfamilias‘. It is not designed to deal with the abuse of power in the home, in sexual relationships, in families, because it is designed for men-in-patriarchy, and in the home, sexual relationships, and families, they hold all the cards.

We might put it like this: men set up a society of families, imprisoning women within them, and having men as the ‘heads’ of these families interacting in wider society. To regulate wider society, they set up a legal system to deal with abuse of men by men – even the crime of rape was abuse of men by men, because the victim was the man whose woman was ‘stolen’ or ‘defiled’.

More recently, as women’s power in society has grown, most notably in the last century or two, the phenomenon of abuse of power within the family, and within the sphere of family-stuff (like sex) was brought to the attention of the authorities. They made a minor concession to women by gradually changing the law to bring these abuses within the remit of the legal system – which was nevertheless entirely unsuited to them.

Now there have already been some very serious, well-thought-out proposals by feminist bloggers about how to make the system work properly against rape. With respect to them, I will make no such concrete or severe proposals – just suggest in very vague terms how the legal system might work in a society based around sexual equality.

I think we would want the legal system to be able to work at much lower levels of severity – that is, in between ‘go to court’ and ‘not go to court’, there should be a whole wealth of intermediate steps, so that people who either cannot or do not want to throw their abuser in jail can still get something done. Restraining orders are perhaps one step in this direction.

I think similarly we would want some parts of the legal system to be integrated with forms of social support – so that finding social housing, receiving psychiatric care, and bringing an abuser to justice could all be handled together, rather than psychiatric care having to deal with the traumas inflicted by the process of seeking justice.

We would want the system to encourage the defendant to make concessions in their claims – instead of rewarding them for sticking to their story and not changing their mind at any point, encouraging them to listen to and take in what the plaintiff is saying, to accept responsibility and see other sides of what happened, to aim for the feelings and thoughts that drove them to abuse be not just suppressed by the threat of punishment but understood, confronted.

I think, although this is far-reaching and I don’t know what it would look like, we might want to merge the private and public spheres, by having ‘private-based’ structures (like affinity groups, families, bodies based on emotional connection and face-to-face interaction) performing some of the functions of courts (carrying out punishment, weighing testimony, facilitating dialogue, etc.)

Related to that, changes in family structure could be very helpful. Larger, less nuclear families would mean both more options for people abused by a family member (more places to go, more sources of support, less dependence on the abuser). They would also mean greater ability for reporting the abuse to other family members to result in a punishment short of imprisonment for abusers who can’t be convicted. The less constricting and nuclear the family, the more easily it can be used to formulate “private-sphere” analogues to the legal system in response to “private-sphere” abuses.

We definitely want, for all sorts of reasons, for the legal system to not reward wealth. That’s bullshit.

We would want women and men to be equally represented in the police, the courts, the judiciary, and all other positions of power. That’s obvious.

Any thoughts?

9 Responses to “Rape and the Legal System – Imagining Equality”

  1. isme Says:

    Well, equality of men and women in all positions of power and getting rid of legal benefits due to wealth is certainly a good idea, it is a total re-write of society and thus not remotedly feasible. The rich, in all societies, have always had more power than the poor. You can act to lower the amount of power they will have, but the inequality will always remain. There’s no particular reason for inequality between genders though, hopefully that will disappear in time.

    Oh, the list of “rape myths” and the truth about them is rather dubious. It deals with the same points more than once, and giving rather different “facts” about them.

  2. Alderson Warm-Fork Says:

    Hmm yes, now you point it out, the list does have some inconsistencies. I’ve replaced it with a different link going over pretty much the same stuff.

    I disagree though that wealth inequality will always remain. I believe that a society without it is rationally desirable, and I believe that as society and technology progresses, people’s ability to identify what is rationally desirable will increase, up to the point where the oppressed are able to reconfigure society towards their needs. But this is obviously going to be a big disagreement that’s only slightly related to the post itself.

    I also don’t think sexual inequality is ‘pointless’ or ‘easy to get rid of’ by comparison to material inequality. Historically I suspect it’s much older, both because there were times when wealth didn’t exist but sex did, and because the ancestors of sexual domination can be seen in other ape societies, where status hierarchies are most commonly dominated by males.

  3. Rob Says:

    Your 4th-last paragraph is about the effects of the nuclear family. Technically speaking, a nuclear family consists of a generation of parents and a generation of children (including step-relatives). For the purposes of this comment, I will allow a nuclear family to have an empty generation of children, as well as the generation of parents to consist of one individual and to allow the generation of children to be collateral relatives of the parents, eg a single woman raising her nieces and nephews. The other form of family is of course the extended, which can be considered a merging of several different nuclear families. If every couple has children, this implies that the youngest generation lives with collateral relatives. An extended family does not have to be a single household; for the purposes of this comment, an extended family can have multiple households so long as they are close enough for the members in one household to interact in person with the members of another household pretty much at will and the specific household a person resides in is irrelevant. A preference for large extended families would also imply a decline in neolocal residence (where a newlywed couple, or an adult moves into a new residence rather than living in the household of some other relative; ie with extended families, children usually don’t “move out”).

    Would an extended family allow the situations you describe in your 4th-last paragaph? I think that it is very likely. However, the current economic and social situation results in a serious flaw in trying to make families less nuclear. That is the need for geographic mobility. If you have to move because you get a job somewhere else, you cannot really compel your adult relatives to come with you. This contributes to neolocal residence and a preference for the nuclear-like families described in the first paragraph of my comment. Hence, for as long as society favours geographic mobility, it will favour neolocality and nuclear families. Until society changes so that geographic mobility becomes unnecessary, it might be better to improve support systems and shelters for victims of abuse and make it easier to escape from abusive relatives.

  4. Alderson Warm-Fork Says:

    Except that geographic mobility works against the nuclear family as well if the two adults have independent careers. Also, geographic mobility makes travel easier, so it opens up more possibilities for people to exist far apart for periods.

    That’s not to deny that increasing mobility has the effects you mention – just to say that it will have other effects as it develops to different degrees in relation to things like economic independence of spouses etc. So its significance in any given context may differ from what you describe.

    Also, I suggested that families be both larger and looser, i.e. allow for bonds that can be maintained without the necessity of permanent cohabitation, or something like that. So – hooray for the future! We don’t really know how it will go.

  5. Q Says:

    On the subject of 4% (or 6.5%) conviction rate the BBC Radio 4 programme about statistics did a nice feature (I believe that the podcast is available for download here:
    http://news.bbc.co.uk/1/hi/programmes/more_or_less/8213670.stm )
    In essence, there are two main problems: that actually, it could as easily be presented as 46% or so, and that without actually knowing how guilty a person is (the number or proportion of false allegations) the 4% figure is entirely meaningless.

    I do agree that society’s obsession with a two-parent ‘nuclear’ family as the greatest and best thing in life is very sad and problematic.
    However, if I try saying such a thing to people I meet, rather than feminists on political blogs, I’ll find that it’s the women who tend to object most strongly. Do feminists such as yourself really reflect women’s opinions? Do women really know what they want or need? That’s a dangerous line to take…
    If women have been brainwashed by a patriarchal society, how come others, such as myself, have not been?

    I am under the impression that the idea of family and the nuclear family in particular would be a feature of a matriarchy at least as much as you seem to imply that it is of patriarchy.

  6. Alderson Warm-Fork Says:

    “Do feminists such as yourself really reflect women’s opinions?”
    First off, something like ‘student of/supporter of feminism’ might be a better term for me. But anyway.

    Do communists reflect the opinions of the proletariat? Most of the time, no.
    Does this invalidate communist class-analysis? No. Is it a bit embarassing? Well maybe.
    Does it, on the other hand, imply some sort of ‘brainwashing’? No, as long as the theorists don’t inflate their confidence in their ideas, and apply their investigations of the ways that ‘social existence determines consciousness’ to themselves equally. Also probably avoid terms like ‘know’. I have opinions, that’s all.

    Does it, in fact, imply anything that’s not painfully obvious? No. I mean, do you disagree that for most of history most people have been profoundly wrong about a lot of things? I’d hope not. Do you, moreover, disagree that our current society is probably not so perfect as to buck this trend? Again, I’d hope not.

    Regarding matriarchy – well, first, I’m not an expert but I’m under the impression ‘the nuclear family’ as a specific sort of family-structure is not a universal in all forms of patriarchy, indeed we may now be moving into one that dispenses with it – but yeah matriarchy is not the goal of feminism. The precise meaning of that term, and what real or unreal societies it’s meant to refer to isn’t clear anyhow, but the goal at least of radical and socialist feminism as I understand it is a “sex-classless society”, without power relations between sexually defined groups.

  7. Q Says:

    I think that some of my comments here are better saved for your article about dialectics, since the two discussions at this point are merging.
    That you can define matriarchy, patriarchy and feminism as three separate goals makes it clear that this is not an area subject to dialectic inquiry (or whatever you call it). Unless you believe that feminism is simply the perfect balance between the two eternally fighting forces…

  8. Alderson Warm-Fork Says:

    I have no clue what conception of ‘dialectics’ you’re using here. Something that’s inconsistent with more than 2 opposed goals? So that the entirety of Marxist ‘dialectical class analysis’, or ‘dialectical materialism’ isn’t dialectical?

  9. ValerieKeefe Says:

    I must object to your characterization of “Deuce’s Law”. A reverse-onus castration-upon-conviction state of assumed non-consent is not well-thought-out. It violates the core principle of the criminal justice system: Preferring an erroneous acquittal to an erroneous conviction. It assumes that power dynamics in relationships are unidirectional, when the evidence would dictate otherwise, such as the statistics on initiators of non-reciprocal intimate partner violence.

    And, as rape law, de facto and de jure, in the Western world over the past two-hundred years has shown:

    – The penalties have been stiffer than they are now. Rape was frequently considered a capital crime.

    – Not all men, as those death penalty cases show, would be considered ‘men-in-patriarchy’ rather they would be presumed to exist in the aforementioned proposed state of non-consent with certain classes of women, the verdict being cruel and unusual vigilante execution. And this is not just a racial intersection. A defence lawyer, and later Canadian Prime Minister, recounted in his autobiography that he had lost innocent clients to the prejudices of the community in which they were judged.

    The solution to a system of intimidation and inequality is not to recreate its inverse. That does not foster equality. Yes, people will forever have no rights if they cannot stand up for them. Countless people have been constructively dismissed from work and never known how to fight for their rights. People have taken abuse from the police and, in that unequal power structure,

    And once again, to the specious argument with Sweden remaining patriarchal, it’s not the pay-gap, but wage disparity after correcting for work-week, location, incidence of fatality, job security, and a host of other factors, that should be measured. And we women are doing pretty well after correcting for the fact that we haven’t been similarly taught that we will be undesirable ‘losers’ if we don’t beat our brains in for a high-status job. It’s interesting to note as a case study that when Tiger Woods was confronted by his wife, she attacked him in his vehicle with a weapon. The violence was non-reciprocal, and he did not involve police. He did not press charges. What was the typical reaction of the Swedish People?

    “Next time Elin, use a driver.”

    Jesper Parnevik, touring professional.

    So yes, what we have isn’t equality, but despite some pathetic shows of bravura misogyny, usually by some performance artists known as a ‘Morning Crew’, and an imbalance in those prestige positions that preclude the possibility of work-life balance, it’s hard to call it uni-directionally and universally male privileging.

    Of course, don’t take my word for it. http://blogs.app.com/saywhat/2009/06/19/woman-on-trial-for-raping-10-men/comment-page-2/#comment-7525 Try reversing the pronoun and the preface about revenge and see if that piece of rape apologia wouldn’t cost someone his job.

    You can’t find the inverse though. It’s such a horribly disgusting sentiment that it’s deleted immediately when something like that is posted. Except, you know, feminism, therefore rape apology is okay then?

    Anyway, I go back to carping about women being denied bodily agency now, instead of angels-on-a-pin theoretical discussions that try to give people an effigy that can easily be attacked instead of conflict with their actual oppressors.


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