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.