The Stanford Rapist and Rape Culture

Every now and again you find yourself reading something which cuts through the superficiality of day-to-day existence. So captivating that it not only captures your attention, it keeps a hold of you a long time after you think you are finished with it. So powerfully personal that it transcends geographical barriers and puts you right beside the writer.

That is how I felt when I read the letter Stanford rapist Brock Turner’s victim read to him when he was being sentenced last week. For those of you who don’t know, Brock Turner was a college athlete who raped an unconscious girl behind a dumpster after a frat party. After a drawn out trial in which the victim was subjected to atrociously degrading conduct from the defendant’s counsel, Turner was found guilty by a jury.

If only the problems stopped there.

See, in the United States (and no-doubt elsewhere) it has been increasingly apparent that there is a serious problem with the way in which the culture of college campus’s inherently feeds and sustains a ‘rape culture’. It is a toxic social cocktail that simultaneously pervades and perpetuates this culture. Mix a combination of underlying social attitudes with young not-yet-fully-developed brains, alcohol and the adulation of (male) student athletes. Then, add to this with the cyclical life-span of college whereby more mature students move on and are be replaced by ‘freshers’ looking for acceptance. It is a veritable Children of the Corn scenario because the ‘adults’ can’t move the culture in a more responsible direction; they are out of the system by the time they have that maturity.

What do you end up with? A self-replenishing production line of male entitlement and dangerous attitudes towards women and sex generally. You end up with ‘consent’ being reduced to a procedural inconvenience because sleeping with women becomes conquest orientated. You end up with a rape culture.

This brings me back to Brock Turner, the Stanford Rapist.

It wasn’t enough that his defence essentially put his victim on trial. It wasn’t enough that they impugned her integrity, her morality and her honesty. Even after the jury had concluded that, on the evidence, it was beyond reasonable doubt that he had raped the victim, they subjected her to one final, continuous humiliation – Brock Turner was the real victim.

Make no mistake, Brock Turner and his supporters have a sociopathic lack of empathy.

You see, Brock was a star athlete on a scholarship to a prestigious university with aspirations to be an Olympic swimmer. This guilty verdict not only jeopardised that, it made him feel bad. Never mind the fact the victim will carry the psychological consequences of his actions for the rest of her life, Brock Turner no longer even enjoyed steak! I wish I were joking – but those are actually the words of his father in a letter to the judge during sentencing submissions.

That, however, is the consequence of him being a victim; what made him a victim in their eyes is that he had fallen trap to the dangers of promiscuity and alcohol. Only being a mere well-educated athlete from a privileged background, he was caught in an intoxicating whirlpool of sex and booze where somehow consent, that line between sex and rape, is lost. Apparently keeping your penis out of someone else without their permission when you have been drinking is akin to the tribulations of Job in the Bible. The sentiment is that Brock Turner’s only fault is that he is human – with the implication that sometimes drunk humans rape shit.

Questions about the culpability of someone who apparently has these inclinations and chooses to drink anyway aside, this line of reasoning is simplistically idiotic. The problem with arguments like this is that they are only half formed – they only consider the situation of one party in a two party scenario. Consider the fact that there exists an actual victim of Brock Turner’s actions, and the logical conclusions become absurd. If ‘alcohol and promiscuity’ are to blame, either:

  1. The victim was complicit in her own rape because she put herself into the vortex of ‘alcohol and promiscuity’ with Turner; or
  2. Brock Turner is the primary victim because he has paid the penalty for what is actually a social problem (note: we are ignoring consent – we are moralising about alcohol and sex here). She was merely collateral damage because college society put him in a dangerous position where he could not possibly exercise his free will and not rape someone.

To all of Brock Turner’s supporters – you can’t have it both ways – there is a victim in this situation and she must be accounted for in the reasoning of your position. To ignore her is to say that her suffering is irrelevant; it is to render her sub-human. If you are going to carry on like ignorant pigs well fine, but at least give her the decency of acknowledging that she exists.

There is a much bigger problem to discuss:

Other than absolutely skewering the lack of empathy from Brock Turner and his supporters, what the victim’s letter does is highlight to us, in very human terms, the failings and inadequacies in how we, as a society, view rape.

We have a rape problem, and it must be addressed.

Research indicates that 17% of women have experienced sexual assault after the age of 15, with 93% of perpetrators being male.[1] These aren’t sensationalised figures – these are statistics reached by asking people whether or not they have experienced rape, utterly unencumbered by the barbarously dehumanising process of criminal prosecution which turn most victims away from reporting.

Taking the conservative approach, that means that, in a group of 6 women, at least one of them is likely to have experienced sexual assault. We are not talking about a guy getting too ‘hands on’ or being a little too forceful – but someone actually having sex with them without their consent. Let’s call it what it is; it is rape.

Rape and sexual abuse is a very poignant issue for me – in my extended family, I have had three (that I know of) relatives who were sexually abused as children. Of those, two never had their abuser charged, whilst the other one was found not guilty, only to go on trial for separate counts of child sexual assault the following week. I have had friends who have been raped, and other friends shaken by ‘close calls’ (for want of a better word). Reading the letter from Brock Turner’s victim was difficult for me because so much of how she described her ongoing trauma was similar to how people close to me have described it. Reading her words was like putting myself inside the minds of survivors close to me.

Have you ever wondered why rape victims often use the label ‘survivor’?

At first glance it seems oddly out of place; rape is a horrific crime but it rarely results in a threat to a person’s life, so why is a victim a survivor? The answer is that a ‘life’ encompasses more than biology. Being alive is defined by more than having a heartbeat. We are more than an aggregation of circulating blood and neurological impulses; we are greater than the culmination of bone and sinew.

A life is an identity; formed, shaped and nurtured by our experiences. We are not born with preordained life plans, nor are we born pre-programed with knowledge. Instead, we form our understanding of the world based on our interactions with said world. If we accept life as more complex than a mere biological function, rape is life threatening because it is an existential crisis.

In essence, rape shatters your preconceptions about life and your place in the world. In one small moment, you are no longer in control of your own body. Your thoughts, intentions and actions count for nothing, because you are being occupied by somebody else. What is existence if you cannot control who you let into your body? When you ignore consent, you aren’t just putting your penis inside someone, you are rejecting their basic rights as a human being.

This is why the long term psychological consequences of being a victim of sexual abuse should never be overlooked – most victims don’t ‘get over it’, they simply learn to ‘live with it’ in silence. Rape is unique in the sense that it has an unparalleled capacity to reduce its victims to nothing. At a human-to-human interaction, it is one person having such utter contempt for another person’s right to bodily integrity that they use them as a vassal for their own sexual gratification. The victim is reduced to nothing more than an object from which to derive personal pleasure. Indeed, so often you hear that it is not so much the penetrative aspect of rape that is so damaging – it is the way in which the act itself degrades the victims and makes them feel small and insignificant.

You deny them their humanity. They aren’t a person with their own identity; you subsumed that the moment you decided, whether out of reckless abandon or cold calculated predatory inclination, to ignore whether or not they have consented.

Consent – the be all and end all of sexual interaction.

When it all boils down to it, whether or not an incident is an incidence of rape should be determined entirely by consent, and lack thereof. Rape is rape because someone decides to have sex with someone without their consent. Simple, right?

This is where it gets tricky, apparently. You see, legal systems are necessarily infused with notions of justice and procedural fairness. Common law systems like ours are heavily structured around restricting the ability of the Crown from arbitrarily interfering with the rights and liberties of its subjects. This is a result of our history – the Magna Carta, the English Civil War and the American Bill of Rights were all concerned with limiting the prerogatives of the Crown. As William Blackstone (really the father of modern law) said in 1760, “It is better that ten guilty persons escape than that one innocent suffer.” We presume people to be innocent, and the State is burdened by laws and procedures to prove guilt.

Rape as a crime itself is not contestable. It is easily characterised as an assault or trespass. The larger problem is how legal systems approach consent – not just how and when a person agrees to sexual relations, but how it is understood by the person receiving consent. The difficulties our legal systems encounter with consent exposes the deeper problems with how our society views rape.

Our Rape Culture – pervasive and gendered.

Saying we have a rape culture is one of the most deeply provocative things a person can do. It strikes at the very heart of insecurity about self and society and it makes people seriously uncomfortable.

As it should.

The problem is how people react to it. There seems to be an underlying sentiment than somehow accepting that a rape culture pervades society makes you complicit in rape itself. Rather than accepting the overwhelming statistical evidence that rape is extensive, we prefer to ignore it. The evidence is there – the sheer magnitude of women who report they have been the victim of sexual assault as adults confirms it. The fact that we currently have one of the largest Royal Commissions in Australian history consistently uncovering the sexual abuse of children by institutions suggests rape and power exist comfortably; in fact, they pervade one another.

The rape culture exists whether you feel comfortable talking about it or not. Pretending that it doesn’t exist, however, gives predators the ability to act with impunity – we are too busy shifting our gaze to floor to take notice of whether or not the girl leaving with that guy is actually in a state to give consent (and mean it). This means putting aside our inherent sense of self-exceptionalism too – most rapists have friends, and if the Brock Turner situation teaches us anything, it should that the people you love and care about are capable of things you don’t suspect. There is nothing fundamentally transformative or exceptional in the fact that you are friends with someone which prevents them from being capable of committing a crime.

In my experience, rape culture is reflected in two ways – the first is the way in which we subconsciously react to allegations of rape and question the victim, the other is the distorted way in which we understand the process of consent.

Victim-blaming in rape

There is nothing which reflects the pervasive extent of rape culture more extensively than victim blaming – the subconscious process by which we hear the details surrounding an accusation of rape and begin asking questions of why the victim was in that situation in the first place. Quite simply, we always seem to question the victim before the alleged offender in accusations of rape.

Usually, it is something along the lines of ‘drunk girl walks home through park late at night in a short skirt, man rapes her’. Read the comments on a news article and there will be a consistent theme, “why was she walking through the park late at night, all by herself and dressed like that?” People veil such questions as being in concern for the girl’s welfare and responsibility, but you can learn far more from these comments when look at what they are silent about. That girl has every right to walk through a park at night. The inherent danger in the action has nothing to do with her own actions (unless you count falling over and hurting herself), it is all to do with whether or not someone else harms her. Why is the question never ‘what was that guy doing loitering around in a park, attacking women at night?’ We seem to accept rapists in parks as a fact of life, and place the personal obligation on women to simply mitigate the risk of rape by not doing certain activities.

When you think about it, there is a pretty sinister undertone to the notion that women should have to restrict their liberty to avoid being raped by people who refuse to afford them the human decency of respecting consent.

I don’t claim to be holier than thou on this matter, either. I used to catch myself doing this all the time; I had to teach myself to stop. Victim blaming is pervasive because it is a symptom of an underlying problem – rape culture.

Rape culture and consent as issues of law:

All of this contributes to the distorted way in which we view consent as an element of an offence of sexual assault in criminal law. If it wasn’t hard enough that victims are subjected to extensive cross-examination designed more to destroy their credibility rather than disprove the substance of evidence, the process is made more difficult because we focus on the wrong perspective of what ‘consent’ is.

In criminal law, an offence of sexual assault requires it to be proven, beyond reasonable doubt, that the victim did not consent to sexual penetration alleged. To the legal system’s credit, over the past few decades this has evolved to encompass the perpetrator being ‘reckless’ about whether or not such consent existed. Whilst this seems reasonable, in reality it poses enormous barriers for prosecutors because it focuses on the subjective intentions of offender and whether or not he understood the victim to have not consented.

Rape doesn’t occur in a vacuum – often victims are attacked because they are vulnerable. Whether it involves, like in the victim of Brock Turner’s case, alcohol, whether it involves drugs, disability or isolation, there is an overwhelming connection between vulnerability and sexual assault. Where the victim (and even the perpetrator) has been affected by drugs or alcohol, prosecuting becomes difficult because it’s about the prosecution establishing that she did not give her consent, and the offender was either aware or reckless to this lack of consent.

In a courtroom setting, this often transpires in ferocious cross-examinations of victims by defence counsel trying to establish the slightest glimmer of doubt that perhaps her lack of consent was not apparent and that, although she might regret the sexual intercourse, she was not ‘raped’. If she has any inconsistency in her non-consent, how could the offender have possibly known she wasn’t consenting?

Well, in Brock Turner’s case, his victim was unconscious beside a dumpster, and he was caught in the act by sober witnesses, but his is one of the rare cases where a conviction actually happened.

Only 10% of reported rapes result in convictions.[2] Considering the statistical evidence about how extensive sexual assault is in the community, this suggests that an overwhelming number of rapes are not reported, and hence the proportion of rapes prosecuted is horrendously small.

It’s a national embarrassment.

CONCLUSION

How do we fix this? It is time to reimagine consent.

As I have already addressed, the issue with prosecuting sexual assault is that it is undermined by a focus on how the perpetrator understands the alleged non-consent of the victim. Fixing how we approach rape as a legal system is difficult because it fundamentally challenges our understanding of basic protections and rights in the judicial process. We cannot simply place the burden of proof on people accused of rape to prove that consent existed.

Except, we sort of can, in some circumstances.

You see, Brock Turner’s actions got me thinking about the way in which we use presumptions in criminal law. Presumptions operate to reverse the burden proof in certain circumstances where specific elements are successfully made out – they are used extensively in criminal law to mandate that a upon A being established, the presumption is B unless the defendant can prove otherwise. We use it with drug offences all the time, and if it’s good enough for drug traffickers, it is good enough for rapists.

In this instance, it would work as follows:

(1) Where a person has sexual intercourse with another person, and that person is so affected by drugs or alcohol so as to substantially impair their ability to give consent, it is presumed that no consent has been given.

(2) Where the presumption in Subsection (1) is established, a person can rebut this presumption by establishing that they relied on the consent of that person based on:

(i) Words communicated by the person to that effect.

(ii) Actions of the person which expressed consent.

And it was reasonable, in the circumstances, for that person to rely on such words or actions as consent.

What this does is place the burden on those who have sexual intercourse with people with questionable ability to consent to actually prove they reasonably believed in consent. By constructing it in this way, you escape this pervasive notion that if a woman cannot remember it perfectly, then she may have consented and that should be enough to exculpate you. It places a degree of responsibility on people to actually seek rather than assume consent.

Would being a little more careful in how we ‘pick up’ women really be that harmful? If the jurisprudence on sexual assault teaches us anything, it is that a lot of defendants seem to believe they simply ‘misunderstood’ the victim to be consenting. We have a perverted sense of justice if we accept that people who have sex without consent by mistake (or negligence) should be forgiven whilst the victims are left to carry their trauma for the rest of their lives. The paradox of rape is a person who has been forced to have sex without their consent faces the psychological consequences whether the rapist meant it or not. The least we can do is make the scales a little fairer.

 

 

 

 

[1] http://www.casa.org.au/casa_pdf.php?document=statistics

[2] http://www.aic.gov.au/publications/current%20series/tandi/341-360/tandi344.html

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Fascinated by philosophy and history, this blog is an outlet for my frustrations of living in a world seemingly dominated by accepted ignorance on one side, and entangled in the intellectual atrophy of post-modernity on the other.

One thought on “The Stanford Rapist and Rape Culture

  1. An interesting and thought provoking article. Before I had got to you conclusion I was considering how a legal ‘opt in’ argument could be framed. Very ugly way of describing it, but as the law, and in experience of most rape victims going through the system, stands the victim has to prove beyond reasonable (all?) doubt that they had ‘opted out’.
    It has always been my contention that real men should behave like true men and treat women with respect, a real man would control his base instincts, selfishness and entitlement. Somewhat naive and unrealistic.
    Failing that, society would turn on the perpetrator and condemn them socially and legally. This, I think is the intent of the current position but certainly isn’t the reality. Hence your proposal, telling society through a legal framework that if it won’t fix its attitude the law will. I’d love to hear someone try a ‘nanny state’ justification opposing it.

    I still have enormous trouble with your ‘short skirt in the park’. I agree with you, 100%, but I think it is as fanciful as my real man dream. Like dressing up as a deer and going out into a forest during hunting season; you have the inalienable right, and of course you can if you want but there are inherent risks with foreseeable consequences. Stupid people do need protection from themselves, as a society I think we have to provide that protection. The hunter must ‘opt in’ and be able to prove beyond doubt that they knew their target was, unequivocally, a deer anything less is culpable. Same with intercourse, unequivocal consent, or there are legal consequences.
    Again, interesting article.

    Like

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