MASSIVE MASSIVE TRIGGER WARNINGS FOR RAPE, ASSAULT, SEXUAL VIOLENCE, VICTIM BLAMING AND LEGAL SYSTEM FAILURE.
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Part One: The Shortcomings of Law
I apologise that this post is going to be rather UK centric, given that my knowledge of the law in this area doesn’t extend much outside of my own country, but I think many of the points will be universal. The law, in many ways, is a good and useful thing. However, it is also important to acknowledge its significant limitations.
If you know me in real life or you’ve been reading my blog for more than, say, three seconds, you’ll know that I class myself as a rape survivor. Whether I would be in the eyes of the legal system, though, is…. questionable.
Under Section 1(1) of Sexual Offences Act (SOA) 2003 a defendent, A, is guilty of rape if:
A intentionally penetrates the vagina, anus or mouth of B (the complainant) with his penis;
B does not consent to the penetration; and,
A does not reasonably believe that B consents.[1]
Okay. Fair enough, in so far as it goes. I’m sure that none of us would dispute that the situation outlined in the above section of legislation is definitely rape. However, it’s really only the beginning, and limiting and problematic in multiple ways.
To begin with, it specifically states that it is only rape if a penis is involved. While it is true that the majority of rapes are carried out by men (primarily on women, but also on other men,) this legislation effectively states that ONLY men can be rapists. Sexual violence perpetrated by women is often seen by society as lesser, not important, and not a real issue (because men would never say no, and the idea of a woman raping another woman is just ludicrous, right?) But how is it okay to state in law that only one gender can be rapists? What about sexual violence perpetrated by any gender that includes penetration with an object or body part other than a penis? Technically, according to UK law, that’s assault but not actually rape. This outdated law presents a heterosexist and phallocentric model of sex, in which essentially nobody except a cisgendered[2] man can be a perpetrator, and erases the experience of all the people who are survivors of sexual violence where a penis, or possibly even penetration, was not involved.
The ‘does not reasonably believe that B consents’ is clever legal wording, but massively damaging to survivors when it comes to getting justice, because it can be manipulated and misused on so many levels. My rapist has come out and said, quite publicly, that he never raped me. I am quite certain that this is what he actually believes. I struggle to believe that he forgets that all the fucked up sexual interactions we had in our six years together ever happened, but somehow he has justified it – because he seems to think I was consenting, because we were partners and I owed him, because I mostly kept quiet during to avoid getting thrown out of the house or worse, because we had had consensual sex in the past? I don’t know the reasons. But what this effectively means is that, if I were ever to take my story to a court of law, I doubt it’d meet the legal definition of rape significantly to secure a conviction, because he’d just say “I though she consented!” And how can anyone prove beyond reasonable doubt that he didn’t?
This phrasing also means that bullshit defences like “she didn’t fight back strongly enough” actually sometimes (read: frequently) get rapists acquitted in the face of significant evidence.
People say to me, and to survivors everywhere, “why didn’t you just go to the police?” To illustrate just why, I’m going to come out with a story that I haven’t told publicly before. I have another ex who tried to rape me. When he was arrested on charges of physical and sexual assault, I went to the police, effectively to back up and support the story of a woman I hardly knew. Why? Because it was right, and because I knew what he was capable of from bitter experience. It took me getting passed through several different officers and indeed three entirely separate departments (one in Hampshire and one in Oxfordshire, before finally getting passed on to one in London) before anyone would even sit down with me and take me seriously, and EVEN THEN I believe they mostly did so because an older, assertive male (Nomad) was with me at the time. What happened? They told me it was useless. That he was going to be out within days and all charges would be dropped. That I could pursue my own case if I really wanted, but it was a waste of time because my name would be dragged through the mud and he’d only get away with it anyway because I didn’t have the all important physical evidence. This is why I did not go to the police. The fact that my community have largely turned their backs on me when I even speak out unofficially is why I don’t go to the police. The societal implications that nice girls keep quiet, smile sweetly when their ex-abuser is around and happy move on is why I don’t go to the police.
We survivors don’t go to the police because the law is fucked up. It isn’t on our side. The very wording of the very brief bit of legislation defining rape in this country effectively gives perpetrators a ‘get out of jail free’ card.
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Part Two: Towards a Social Definition
We like to think, within the little bubbles of our supposedly radical communities, that we can police ourselves – we don’t need the legal system, which is mostly against us from the off, to do it for us. Right?
Well, this is where things get really interesting. We’ve established that the law isn’t on the side of survivors, but very bitter experience has taught me that I can’t, as a survivor, necessarily rely on these communities to be on my side, either. How many of us don’t know a woman who’s been pushed out of one social group or another (more often than not, a supposedly progressive space like polyamorous or BDSM community) because she spoke up about rape or assault?
Why is this? Sometimes, it’s because these groups make exactly the same mistakes as the legal system makes, dissecting every detail of a case in a desperate attempt to decide that it wasn’t really rape – or that the victim (usually a woman, though let’s not generalise) was to blame in some way. This isn’t because these people are evil, or actually believe in sexual violence. It is because they are afraid beyond measure of admitting that rapists exist in society and in their community, and that they are not creepy, leering predators lurking in dark alleyways waiting to pounce, but ostensibly “nice guys” with jobs and partners and families. It’s very simple psychology to understand that people want to blame the victim because, if they can convince themselves that victims are responsible in some way for theur own assaults, they feel safer in the assurance that they can prevent it from happening to them.
In BDSM community, it’s often ‘well, she shouldn’t have played with him, she knew he played hard and didn’t do safewords,’ or even more sickeningly, ‘if she was a real sub, she’d have shut up and taken it.’ In polyamorous and other GSM[3] circles, at least the ones I’m directly or indirectly familiar with, it’s more often simply ‘well, no-one can really know what happened, perhaps she provoked him, things were said on both sides…’ at best, or ‘did she expect to get away with not having sex when they were in a relationship?’ at worst. Either way, it’s messed up. But I’ve ranted about that before.
What I’m interested in here is looking at ways in which we in minority communities which purport to have the best interests of survivors at heart can actually do better – and the first thing I propose is that we stop, stop, STOP dissecting whether a situation can fit the legal definition of rape, and instead look at a more realistic, fluid, social definition.
Surely we cannot accept a definition in which only one gender can be rapists? Surely we must see that it is Messed Up that it doesn’t count as rape if a woman forces a man (or another woman) to have sex against their will, or that it’s not Real Rape Rape if they’re in a relationship, or if the victim agreed to let themselves be tied up, or if one or both of them was drunk?
We need to agree that sex, of any form and between people of any genders, that is forced, coerced or otherwise not performed with freely given and enthusiastic consent on all sides is Rape. Not grey rape, not date rape, not maybe/maybe not, but Actual, Real Rape. And rape is a crime, always, even if there exists some legal technicality via which the perpetrator can get away scott-free.
Then, once we have this social definition in place and stop playing these was it, wasn’t it? games, THEN we can begin to be truly radical in the support of our survivors and, if we choose, the effective rehabilitation of our perpetrators, meaning that there will in the long run be fewer rapes overall, full accountability for the rapist as well as support for the survivor, and none of the bullshit victim blaming that is so prevalent as things stand at the moment.
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[1] Source: http://www.rapecrisis.org.uk
[2] Is it “cisgender” or “cisgendered?” I’m never sure, and I’d like to get it right.
[3] Gender and Sexual Minorities.
