Raped by rapists, raped by the law, then raped in the media

I’ll be the biggest scar in your back
Run down and jagged and naked and black
I’ll be the biggest dick that you ever had
Hey, want it back?
Hey, want it back?
You want it.
– from Good Sister, Bad Sister by Hole

An unnamed homeless 43 year old woman from Washington state has been having a particularly bad year.

Allegedly kidnapped by her ex-partner and forced to perform oral sex on his friend, when released she did precisely what you might expect and what many in the feminist commentariat would insist she should do. She called the cops. Big mistake.

I have written before about the potential for further abuse to be heaped upon rape victims by the legal system and about my own fumbling attempts to set up alternative support systems for victims and deterrence and rehabilitation programs for sex offenders, but this case represents a particular low water mark in how our institutions treat those who report sexual assault. After she missed several meetings with prosecutors they became concerned their case would collapse before it began. So they issued a warrant for her arrest. Then they threw her in jail.

The reasons she didn’t show up for appointments could have been many and varied. Perhaps she has a chaotic lifestyle and seeking food, shelter and medical care takes priority over talking to lawyers. Maybe she knows how rare successful prosecutions of sex offenders are – especially in cases where the only evidence is the testimony of the victim – and does not think the slim chance worth all the hassle and humiliation that almost invariably comes with giving evidence as a victim. Perhaps she did not believe what the legal and prison system might do to her ex would in any way help her recovery and may instead put her in danger of reprisals. Or it could be she just isn’t ready to talk to a bunch of strangers about her experience yet and would prefer to try to get on with her life. Surely we should be putting the needs of the victim front and centre, especially if we call ourselves feminists.

But that’s not what happened.

Self proclaimed feminist Amanda Marcotte writes in Slate that the prosecution did the right thing. She says it is more important to put rapists in prison than to respect the feelings of victims. To do otherwise is to put more women at risk of falling victim to the same rapists. Even setting aside the rather repugnant principles guiding this attitude, it ignores several important practical considerations.

Firstly the alleged perpetrators have still not had their day in court. They may be innocent, though it is still important to put this to the test. But even if they are guilty there is a far less than even chance they will be convicted and if convicted there is no guarantee they will be prevented from committing further rapes. If imprisoned they will still be released someday – probably having spent years being brutalised in the prison system – and even while in prison they will have plentiful opportunities to rape again. Those raped in prison are at increased risk of becoming sex offenders themselves.

Also, the best available research suggests that contrary to popular belief most sex offenders do not re-offend. Rapists have a detected re-offence rate of 15-25% – much lower than the 60%+ average for criminal offenders as a whole – though given the low reporting rates for rape it is probably an underestimate of the true level of recidivism.

So, in a nutshell, Marcotte’s argument is that it’s appropriate to lock up the already traumatised victims of sexual assault because of what somebody else might do. Heck, why not lock up the mothers of alcoholic football players while we’re at it? Binge drinkers who play contact sports are at particularly high risk of committing sex offences.

As appalling as this case may be, I’ve seen worse.

In 2002 I was involved in a case in which a woman was prosecuted under Northern Territory legislation that targets those who fail to prevent an act of incest. Based on dubiously obtained and hopelessly misinterpreted DNA samples, the Crown alleged the woman’s father was also the father of her aborted foetus. When she refused to give evidence against her Dad they threw the book at her and threw her into police cells. Needless to say the defendant was an Aboriginal woman. A search of court documents indicated the law has only ever been used against Aboriginal women. Aborigines are at increased risk of dying while in NT police cells.

CRIMINAL CODE OF THE NORTHERN TERRITORY OF AUSTRALIA – SECT 135
Incest by adult female
135. Incest by adult female

(1) Any adult female who permits her father or other lineal ancestor or her
brother or her son to have sexual intercourse with her, knowing him to be
her father or other lineal ancestor or her brother or her son is guilty of a
crime and is liable to imprisonment for 7 years.

(2) It is a defence to a charge of the crime defined by this section to
prove that the female was, at the time when she permitted her father or
other lineal ancestor or her brother or her son to have sexual intercourse
with her, acting under his coercion.

The prosecution evidence was a shambles but as this was relatively early days in the Territory’s use of forensic DNA testing and few lawyers had any experience or understanding of it there was every prospect of a conviction due to the ‘CSI Effect’ – the belief many people have that DNA evidence is inherently infallible. The expert witness for the Crown would claim there was only one chance in 7000 a randomly selected Australian male would be as likely to be the father of the child as the defendant’s father, but he had ignored several important considerations. First of all is the fact the alleles used in forensic DNA profiling are not distributed among Aborigines in the same ratios they appear in the general Australian population. There is more likelihood of a chance match between two Aborigines from the same region than between two randomly selected Australians and no-one was questioning that the father of the foetus was probably a local Aborigine. More importantly the forensic scientist had ignored relatedness in his calculations. The relatively isolated community the woman was from was home to many of her uncles, cousins, nephews, etc all of whom were much more likely to match the DNA profile of the potential father than any randomly selected Australian male. In fact we were able to demonstrate statistically that there were likely to be between three and six men from her community alone who would also have a profile compatible with being the father of her unborn child. Perhaps she didn’t want to give evidence against her father because her father wasn’t the culprit. The case was thrown out for lack of evidence but that didn’t prevent prosecutor Nanette Rogers from later telling ABC Lateline “the [DNA] profile meant that the father was, in effect, the father of the child”, implying NT courts are somehow reluctant to prosecute Aborigines for sexual offences – a suggestion that bears no relation whatsoever to the facts. While she was at it she also claimed the woman’s father was a serial perpetrator of domestic violence, based on no evidence beyond the claim he had once been acquitted of a murder. If true though it would be a very good reason for the woman to be reluctant to give evidence against him unless she was certain of being protected from reprisal, something very unlikely on the remote outstation where she lived. Naturally Prosecutor Rogers failed to mention it was the victim, not the alleged perpetrator, that the Crown was trying to lock away for up to seven years. Lateline made no attempt to verify or challenge the many racially inflammatory claims made by Rogers in the interview, despite some of them being nothing more than apocryphal stories that have been kicking around NT pubs for decades and nothing of which Rogers could have had any direct experience.

It is not the responsibility of victims of sexual assault to assist the State in prosecuting offenders. It is the responsibility of all of us to respect their wishes and offer what support we can. As long as the legal system keeps treating the victims of sexual assault like this there will continue to be a very low rate of reporting of offences and the vast majority of rapists will continue to go undetected. How this is meant to make potential future victims safer is a mystery to me.

If there’s one thing criminal justice activism taught me it’s that regardless of what happens you should think very hard before calling the cops. Because no matter how bad things are, our legal and penal systems are likely to make them worse.

                                                                                                                                                                                  

Postscript (8 June 2017): Just when you thought the abuse of rape victims by law enforcement and judiciaries couldn’t get any worse, something like this comes along. What’s desperately needed is some way of dealing with sexual assault at the community level that completely bypasses our dysfunctional legal institutions and media. I’m not talking vigilantism here, but something like the community conferencing and circle sentencing employed by some indigenous groups.

Hat tip to stavvers for alerting me to Marcotte’s article.