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Call It What It Is

May 3, 2010

What should be call it when a jury seizes on a ridiculous excuse to acquit a rapist? Par for the course, that’s what it is. There’s another term, which I’ll explain: “jury nullification.”

I’m sure by now most folks who read this blog have read the story out of Sydney, and I won’t repeat the details. Many folks have pointed out that it’s patently stupid to assert that skinny jeans cannot be removed without cooperation, and then even cooperation in removing clothing does not indicate consent. That’s worth saying, but really isn’t that utterly obvious? Yes. Yes it is.

Why would a jury acquit a rapist based on such a flimsy defense, over the testimony of the woman who was raped? Because they want to. The last time I wrote about a story out of Australia, it was just about the same thing. The police and prosecutors believed the survivor, they prosecuted her case right up through the jury trial. And then the jury wouldn’t convict. In that case, the woman was a sex worker, and the assailant admitted using force. I said then:

This is not a legal problem. This is not a problem statutory reform can solve. Her work was legal where she was doing it. She was a service provider engaged in a lawful business enterprise … And this is not an enforcement problem. The police made an arrest and the prosecutors brought the case. The judge didn’t throw it out. The case went all the way to a jury.

This is a cultural problem.

[Emphasis supplied.]

This case, too, is not a statutory or a law enforcement problem. This is a cultural problem. There is a term lawyers use for when juries in criminal cases won’t convict even though it’s clear that the prosecutor has proved the charged offense beyond a reasonable doubt: jury nullification. There is no appeal from an acquittal, even if ridiculous, even if bigoted, even if wrongful. The finality of an acquittal is often discussed as a check on tyranny, but it can have the opposite effect. Jury nullification can mean that the community will simply deny some people justice. Jurors can deny rape survivors justice.

I’ve discussed solutions to this problem before, but there is really only one. The culture that produces the jurors has to change.

h/t Jos at Feministing.

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30 Comments leave one →
  1. Agnes permalink
    May 3, 2010 10:19 am

    This story made me so angry. Of COURSE you can remove skinny jeans by force. In fact, it’s easier for someone else to remove them than it is to do it yourself! I feel so awful for the poor woman involved.

    It reminds me of a case in the UK last week where a minor celebrity was acquitted of raping a woman, based primarily on the fact that she called to her friends in the next room than she was ‘fine’. There seems to have been no consideration that she did so out of fear of inadvertently escalating the situation – there is this awful cultural assumption that a virtuous woman should be more afraid of rape than of further physical violence or even death, so if she co-operates in any way and doesn’t fight with all her might, then she must have ‘wanted it’.

  2. May 3, 2010 1:09 pm

    I was one of the people making the obvious point that of course skinny jeans can be removed by force ( You’re entirely right that the culture has to change. I want to change it, but it seems that we’ve been repeating the same thing over and over for years. We have changed the approach by the police, but the courts, the entire legal system, but we haven’t changed the culture. So now, my question is ‘how?’

  3. May 3, 2010 4:41 pm

    My proposed solutions:

    1) Mandatory, non-commutable death penalty for rape, to be carried out as soon as the guilty verdict is pronounced.

    2) Burden of proof in rape cases to be shifted from the victim/survivor to the defendant (ie, he must prove his innocence).

    3) Only rape survivors may serve as jurors in rape cases.

    That should eliminate rapists pretty quickly, IMO.

    • rebekah permalink
      May 3, 2010 5:43 pm

      as much as I would like to agree with what you have to say here there are some problems with that.
      1. I cannot support the death penalty
      2. The constitution gives people the right to appeal if they are found guilty and that process cannot happen if the person has been executed
      3. saying that only rape survivors can serve on the jury for such cases would mean asking potential jurors if they are a rape victim, so not exactly feasible

    • Mer permalink
      May 4, 2010 1:38 pm

      Shiva, beyond the blatant hatefulness, I can’t see those things being a viable solution.
      1. Deterrence is only marginally successful, even in crimes that often leave a lot of evidence behind. Also, the very small minority of men that commit the vast majority of rapes already know what they’re doing.

      2 + 3. At least here in America, we tried that in various forms against black people in the forms of lynchings and Jim Crow. I don’t think I need to go into how that worked out. Guilty until proven innocent is a terrible regressive idea.
      Under you’re model, anyone has a reasonably high possibility of accusing anyone and having them executed.
      With rules like this, we would have a situation where only men that have decided that they completely don’t care about the consequences of their actions will have anything to do with women.

      It won’t eliminate rapists. Rapists will still rape. The only thing it would eliminate is whatever good will and trust there is.

      • May 4, 2010 2:35 pm

        MER, are you suggesting that lynchings were actually a form of criminal justice system around rape, or are you aware that the mythology of black men raping women was always just that, an excuse for slaughter and social control that had nothing to do with protecting women? If you know lynching didn’t actually have anything to do with rape except as an excuse, your analogy is disingenuous. If you don’t, then you need to level in US history.

        I was on the fence about even letting your comment through. What Shiva said is both provocative and impractical, but I really was curious to see if the reaction would be defensiveness masquerading as horror. I’ve quoted Twisty Faster’s suggestion that rape carry a presumption of guilt before, because I think it is thought provoking to analyze how het men would deal with their sexuality if they were the ones who had to live with fear.

      • Mer permalink
        May 5, 2010 8:20 am

        I wasn’t specifically linking it to rape, but to the concept of ‘guilty until proven innocent’, and how dangerous it is. Because the victims where just that, assumed to be guilty of whatever offense their murderers had in mind.

        As for guilt posing as horror, I don’t have any guilt about simply being male. Horror? Yes. I am offended at someone suggesting that I be able to be executed without a fair trial.

        Call it like I see it? In Shiva’s post I see bigotry, and that’s not something I’m comfortable with. Especially here.

        We’re quite a bit off topic, and I’m willing to discuss more somewhere else if you like.

      • makomk permalink
        May 14, 2010 1:35 pm

        Thomas: you think that the actual criminal justice system would be any better? That under shiva’s proposal, black men wouldn’t be arrested, convicted and executed for rape for exactly the same reasons that they were murdered as rapists in the era of lynchings, except with shiva’s curtailed version of justice providing a nice justification for their killers? I don’t believe that for one second.

      • May 14, 2010 2:04 pm

        Makomk, I thought I was entirely clear in the OP that I think no kind of criminal justice reform, or in fact, kind of criminal justice system, will do better unless and until societal attitudes around rape change. I thought I was crystal clear about that.

      • makomk permalink
        May 17, 2010 3:21 pm

        Thomas: except there are a couple of issues with that. Firstly, the entire point of shiva’s proposal and others like it, such as Twisty’s, is that they’re put forward as a solution to the problem of our societal attitudes towards rape. In fact, if attitudes to rape were better they’d lose any justification whatsoever. Secondly, the lynching of black men for raping white women is more about attitudes to race than to rape, and I can’t see any reason that fixing one would fix the other.

  4. aminah permalink
    May 4, 2010 12:43 am

    Shiva’s core point is accurate. Men must live in fear of being accused of rape and live accordingly.

    What is known about women who rape (other women or children) is that invariably they’ve been raped or sexually degraded by a man/men first.

    To break the cycle, start with keeping the men under control. Use a whip and beat them if necessary ~ Like the great Cherokee matriarchs did with their rogue males.
    Cherokee culture survived thousands of years; they obviously were doing something right.

    • quarterpast permalink
      May 12, 2010 8:29 pm

      I have to wholeheartedly disagree. We already have a culture that makes men fear being (unjustly) accused of rape… all it does is encourage the non-rapist man to defend the rapist, and perpetuate the ridiculous belief that false accusations of rape are common.

      What we do need is (1) people to be sure that rape is fairly, consistently, and justly handled by our justice system (including the citizens that report, testify to, and jury the crime) – equal to any other high crime. And (2) for more men to realize and experience that sex with (an) enthusiastically consenting (and initiating) partner(s) is so much hotter that anything else is unappealing. That forcing sex on an unwilling partner is such a failure of a man’s ability to attract a mate that it’s just plain un-masculine.

      (I don’t like the gender roles here, but machismo is a strong force in our culture and in the rape culture – it’s easier and more productive to redirect it)

      • aminah permalink
        May 19, 2010 2:43 am

        If men really fear a rape charge, they will change their behavior ~ Don’t sleep with drunk girls or women they don’t know. This is a strategy for men to avoid the dreaded (hah!) rape charge. (it’s their mothers that fear a rape charge against their sons more than the boys fear it.) Try an experiment; ask 10 male friends what the top 5 fears they have are. Most won’t even mention rape accusation.

        It’s wise to start with education on proper sexual behavior, if that fails follow with humiliation, then if that doesn’t keep them in line, whipping is utilized (as the Cherokee women did). If inappropriate behavior continues execution is the final step.

        If the first 2 points are followed the last two options will a avoided.

    • Alex permalink
      June 23, 2010 12:41 pm

      There are some who argue that all people who commit sexual assault have been sexually assaulted themselves. That’s not an excuse even if it is true. If we want equality, and I do, we have to treat women and men the same. Most rapists are men because rape is about power, and men have the most of it. Sexual assailants, regardless of gender, need to be given full responsibility for their actions. The act of sexual assault is to be blamed entirely on those persons who commit it. The blaming of victims for the acts is to be blamed on society. It’s not that men should have to live in fear of a rape accusation, it’s that sexual assailants should live in fear of being caught.

  5. May 4, 2010 5:55 am

    Sounds like I’d better rephrase my question. How do we change the culture, thus improving the rape conviction rate, without destroying the criminal justice system or murdering people?

    • May 4, 2010 8:32 am

      My view is that we have to move away from a model of sexuality that is essentially adversarial (the Commodity Model, where sex is a thing that women have and men are trying to get) and towards a model where sex is something done, or created, by the participants (the Performance Model, where the whole is more than the sum of the parts). When the culture has assimilated the norm that sexual conduct is fully consensual and satisfying to all involved, any coercion or dissatisfaction is anomalous and calls for an explanation. I think we have to start teaching that in preschool, as I discussed in If She’s Not Having Fun You Have To Stop.

      • May 8, 2010 1:23 am

        I read somewhere that at least one ancient culture had the idea that sex was sacred and taking it from a woman without her permission would…I forget, kill part of your life-force or something. (Note that I said sex itself was sacred, not just virginity or sex-with-someone-you-love)

        I read whatever-it-was a long time ago and I’m too lazy to go Googling for proper references right now…but reading the description of that culture was amazing. I’d been so steeped in the “commodity” model of sex that I couldn’t conceive of any other way to think of things. Plus I just kind of figured that as long as (most) men are stronger than (most) women, they’ll be prone to taking what they want by force. It didn’t occur to me that men could ever be convinced that it’s wrong to force themselves on women, because so far that’s not working out so well in our society.

        The difference, though, is probably that we tell guys rape is wrong because women should have agency over their own bodies (or simply “if you get caught you’ll be put in jail”) while these ancient people told guys raping women would put bad spiritual juju back onto the rapist. Rapists are obviously people who put their own interests first and foremost so “if you do this, god will smite you” is the most effective deterrent.

        This, then, is the perhaps the best way for society to change. Huge legal penalties for rape are all well and good, but only if the rapists get caught and convicted. We should instill a powerful sense of karma in kids from a young age instead – let them know that taking advantage of someone else (in any way) will FUCK THEM UP and there’s no way to avoid that spiritual punishment because even if they were sneaky, fate knows what they did.

        Also, as Thomas has said before, we need to identify and shun rapists (which is a version of the bad karma thing in and of itself: if you’re a shithead, you lose all your friends).

    • aminah permalink
      May 4, 2010 9:38 pm

      “How do we change the culture…..without destroying the criminal justice system…”

      We can’t.

      Don’t fear destroying something that is obviously not working. What is destroyed can be rebuilt.

  6. Agnes permalink
    May 4, 2010 4:01 pm

    Whilst Shiva’s point is clearly unworkable, perhaps the fear of rape should be displaced onto men – not making men fear being raped, obviously, but making the fear of being accused of rape as great as the fear of being raped. If the burden was on the defence to prove innocence rather than on the prosecution to prove guilt, then instead of women getting accused of being ‘irresponsible’ for ending up in situations where they were raped, men would be seen as ‘irresponsible’ for putting themselves in situations where they could be accused of rape. Instead of saying ‘the woman was in his room, she was asking to be raped’, people would say ‘the man let the woman in his room, so he was asking to be accused of rape’.

    (I’m not seriously suggesting that this should happen, by the way – clearly the best situation would be Thomas’s and my proposal is ridiculously unjust – but imagine how many fewer rapes there would be if the presumption was ‘guilty until proven innocent’ in rape cases…)

    • aminah permalink
      May 4, 2010 9:27 pm

      “I’m not seriously suggesting that this should happen,”

      Why not? Every revolution starts with words ~ a shift in conversation and ultimately the narrative is rewritten.

      All laws begin in the street. How people talk about any crime will filter thru the media, the class room, the dinner party and finally the court house.

      Lets do our part and every time a boy is accused of assault say, out loud, why was he there – why was he having sex with a drunk girl or a girl he just met, etc.

      • Mer permalink
        May 5, 2010 10:37 am

        A lot of this discussion is ignoring the fact that for the most part, these people aren’t ordinary guys that need a little education on no means no.

        They’re predators. They know they’re not getting consent, and they don’t care.
        Treating everyone like criminals is unfair to the overwhelming majority of men that don’t rape, and counterproductive towards dealing with those who do.

        I’m not saying that they shouldn’t be afraid; they should be.

        But the Death Penalty doesn’t stop cold blooded murderers any more than long sentences stop drug possession.

        Anyway, I have a question about your take on this thought experiment: How many executions of innocent people are acceptable per guilty?

      • May 5, 2010 8:52 pm

        I don’t agree with some of the legal situations people have been suggesting – they’re horrifying – but I do see aminah’s point in suggesting that we change the way we talk about it. It’s not treating non-rapists as rapists – it’s a way of changing the culture, as Thomas says, so that when rapists do rape people, they are punished and prevented from doing so again.

  7. May 4, 2010 4:59 pm

    It’s so terrifying to see people denied their basic rights by other people. These jurors were not reacting based on their interpretations of the evidence. They were punishing this woman for being raped.

    You’re right – the culture has got to change.

  8. Jenn permalink
    May 5, 2010 9:11 pm

    As someone who actually lives in Sydney can I remind you that this is an Australian case one in which Im sure you have little insite into the culture!!

    Let me give you some more info!

    Here a man defending a rape accusation has the RIGHT to
    openly question the victim in an open court roon
    question her past sexual history and her past/current use of birth control
    force the whole case to be about sex rather than what rape really is

    We as in advocates for the chage of the judicial system when it comes to rape have been trying for years to change the system. Since 2001 when there were a spate of gang rapes that were played out in a coutroom in a way that can only be classed as a circus we have been doing everything we can to change the legal mantality that a victim has to prove her rape! The legal fraternity have stopped us at every stap because of the prusumption of innocence and the constitutional right to trial by jury.

    Off the record “gossip” I guess you caould say about the jeans question is said to have stemed from a porn clip that a member of the jury had watched and that made her question weither or not the jeans could be forcefully removed. Notice how it was a FEMALE that questioned this!!

    This is a LEGAL cultural problem that needs to be changed, there is a total lack of empathy for victims even child victims here! You only have to look at the case in Tasmania where a father on the child sex register was allowed overnight viits with his daughters. Our judicial system has been void of any common sense or victim empathy. & if you need further proof than look into the gang rapes of 2001/02 and see what our courts did then!!

    To say that this is a cultural issue is completly innapropriate and insulting to ALL Australians. The actions of one jurier (which is all it takes as we have a majority needed for a conviction) can not represent the views of the population. Making such value judgments does nothing to change anything nor recognise the true issues in theis case which lay squarly on the judiciary!!!

    • May 6, 2010 2:47 pm

      I don’t think it’s a particular Australian cultural problem. I think it is at least a cultural problem in the English speaking world, and I limit it to that only because I have better access to English-language media. US juries and Canadian juries and British juries are just as bad. In any event, you concede that the problem is with the jurors and their attitudes and prejudices, not only with the professionals in the system or the letter of the law.

    • Alex permalink
      June 23, 2010 12:51 pm

      Holy shit…I think Australia needs to try that magical thing called a rape shield (it gets lifted a good deal here in North America, but it’s something at least), where a rape victim’s sexual history, etc. are not allowed to be brought up and the name of the victim is kept out of media.

  9. Aint No Venus permalink
    May 25, 2010 11:58 am

    With all this talk about criminal justice and rape culture, I think I would agree that changing a model of “women have something for men to get” is fundamental. And I would go farther in saying that any proper functioning human being recongizes the humanity in everyone and has to learn that people’s vulnerabilities put them at risk for abuse and aren’t their fault.

    It’s also worth noting that the model of our criminal justice system is flawed. Prevention and rehabilitation is more important than punishment, wether it be incarceration or bad spiritual juju. Of course, in this case aquital is the absolute worst case scinario, and I’m speaking about cultural attitudes towards criminals. If someone is punished for their bad deeds, but isn’t given the opportunity to learn better, they’re going to come out of prison as a more shrewd criminal. It’s hard for me to envision a reformed rapist. People exploiting other people’s weakness in their most intimate parts is deeply upsetting, and this story made me furious, but I think it’s important to not think in absolutes. You can’t be living a happy healthy life and do bad things to others.


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