Men, women, rape and justice

The fact that I’ve filed this under “topical thoughts” although the coalition’s statement on this came out weeks ago (now topical again as MPs debate the issue) can be taken as an indication of my trepidation about venturing into this most divisive and explosive aspect of the criminal justice system. I hope very much that spelling out that the controversy is about the anonymity of rape suspects is not necessary: we should all be exercised by this and familiar with the issues.

It’s not possible to think about rape in the criminal justice context without first addressing rape in itself. Much of the argument about how rape should be dealt with is predicated on the idea that rape is a unique kind of crime. Is that so? It’s not uniquely brutal, that’s clear. There are all kinds of appalling tortures that we inflict on one another that would vie along with rape for the right to sit at the ghastly apex of brutality. Is it uniquely invasive? There’s a stronger argument for that, but perhaps only if you also accept that sexual invasion is in a different category than are other kinds. But there is one sense in which the crime of rape is different from all others: it is the only crime that can only be committed by men. Whatever sexually coercive things that women may be able to do to men, they do not constitute rape. Rape requires the penis in the same way that pregnancy requires the uterus. It is its sine qua non. Of course, men can rape other men, so rape is not unique in that its victims must be women, and I’m certainly not going to try and determine if there is any difference between having a penis in one’s vagina against one’s will, or in one’s rectum. But the uniqueness of requiring a penis for its commission does indeed mark rape out.

Does this uniqueness bring anything else in its train? Caroline Flint made the very good point this morning that anonymity is only ever discussed in the context of rape – although I have heard similar arguments made about those accused of child abuse, at least in some circumstances. There are many crimes (I should have thought almost all) where the reputation of the person accused is soiled whether or not they are eventually found guilty. I accept that the more serious the crime, the greater the reputational damage, but justice being done, and being seen to be done, requires openness about the players. This is much more powerful as an argument against the anonymity given to victims than it is as an argument for providing anonymity to suspects. Anonymity for victims is in some ways an intolerable concession to the idea that a violated woman is somehow damaged in the eyes of men, and therefore needs protecting in the sexual marketplace. I am not opposing anonymity for victims, merely pointing out that a special case has to be made for it, and that the default position should be against it.

There’s another aspect about the anonymity for suspects debate. It’s hardly ever put forward when the rape is by a violent stranger in a public place. This is predicated on the notion that there are different kinds of rape, and that some are committed by monstrous fiends that most men can feel secure in the knowledge they will never be, whilst others are somehow the results of misunderstandings in the tragedy of manners when poor hapless men are in some bizarre way tricked by the fickleness of women’s sexuality. And of course, all men can relate to that.

Well, not this one. Penises do not end up in vaginas by accident. There is no point, from the first stirrings of sexual attraction, to the last moment before penetration, when the words “no” and “stop” can be misconstrued. Hugely disappointing maybe, but not misunderstood. Of course it is a travesty if a woman does not say no, but simply regrets the sexual act after the event and then recasts it as non-consensual. That is a nightmare which men rightly fear. But there seems little evidence that it is common. And for the avoidance of doubt, rape can still occur after consensual sex if a man decides on second helpings without their partner’s consent. Consent is not given without an expiry date.

So the anonymity debate, which on one level seems merely an effort at even-handedness, with the rights of victims being mirrored by the rights of suspects, is in fact based on a misapprehension about what is truly unique about rape, and what is not. Rape is not uniquely awful, such that suspects are tainted by the very accusation in a way that cannot apply to any other crime. Rape is unique in that only men can be suspects, and therefore anonymity for men is inextricably linked to the powerplay of sexual politics. Men fear the accusation of rape because it is an accusation that only women can make (other than the much fewer men who are victims: but oddly no-one seems to be getting agitated about anonymity then.)

For anyone falsely accused of a crime they did not commit, the consequences are catastrophic, and the more so the more serious the crime of which they are accused. But this is not a unique attribute of rape. As for the fair’s fair argument that anonymity for victims must be balanced by anonymity for suspects, I’d prefer to see the balance restored by removing anonymity altogether. That’s clearly not possible at the moment because society’s attitudes to rape preclude it. But perhaps a society in which rape is seen as a crime without even the slightest implication that women bring it on themselves, by their dress, or by their sexual fickleness, or by their moral decadence, will be a society in which women no longer feel the need to be anonymous if they are raped any more than they feel the need to be anonymous if they are robbed or defrauded.

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10 thoughts on “Men, women, rape and justice

  1. Just a quick, pedantic note – rape can be committed with things other than a penis. I’m not sure of the preccise legal definition, and I’m at work so I’m not Googling it, but it does include something along the lines of “the forcible introduction of an object…” and has, therefore, been committed with something other than a penis.

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  3. The definition seems to be:

    Sexual offences Act 2003 s.1 RAPE

    1) A person (A) commits an offence if-
    a) he intentionally penetrates the vagina, anus or mouth, of another person (B) with his penis,
    b) B does not consent to the penetration and
    c) A does not reasonably believe that B consents.

    So I think a penis is generally considered to be integral to the act. In any event, I think my comments stand in the vast majority of circumstances.

    • I must be mis-remembering the details of a case, then, when the penetration took place with a bottle. But, like I said, I’m at work and therefore not Googling it!

  4. My £0.02 worth.

    I was falsely accused of indecently assaulting my 2 year old daughter by my then partner after she ran off with a (supposed) friend. She took her allegations to social services who “investigated it”.

    Despite no evidence; character witnesses – including my GP, several serving police officers and relatives of my ex partner; a friend’s partner who was a child protection social worker from a different department also wrote in my support); a psychiatrist’s report in my favour; I was working for an organisation who worked closely with the police at the time. I had asked on repeated occasions for a full and proper police investigation (which SS refused to do).

    SS decided I was guilty. It cost me my job.

    SS took it upon themselves to supply the police with half the file under the banner of “local intelligence”, obviously the parts that made me look guilty. Twelve years later I am still living under the shadow of the allegation. The local intelligence still applies and there are a huge range of jobs I simply cannot apply for. I live in fear of people finding out and vigilante reprisals.

    My daughter calls another man “Dad” and almost certainly doesn’t know the truth about what went on, her mother will have poisoned her against me.

    I shudder to think how much worse my life would have been had it come to court and the press been able to publish details of the case including my name.

    It’s not just rape that needs a review.

    • Thank you for sharing this painful and nightmarish scenario. I cannot possibly imagine what it must have been like at the time, nor how hard it must still be to have lost at one stroke both your daughter and your career.

      Obviously the issue in your case is not the anonymity (even in the current rules, anonymity is supposed to be preserved up to the point of being charged, which fortunately did not happen to you) but rather the horror of false accusation. Perhaps the only way to deal with the injustice of innuendo is to have either a full-blown investigation, or else bar the keeping of records about unsubstantiated cases. I am personally very dubious about the use of hearsay and rumour to debar people from access to certain kinds of employment, notwithstanding the undoubted risks that are posed by some people who have never been convicted of an offence. It’s truly an intractable problem.

  5. What a nightmarish scenario for all involved. I honestly don’t know what the answer is, though your last sentence where the blame for the crime is in no way even hinted to be the woman’s fault is at least a way forward.

  6. The general perception seems to be that it’s more shameful to be raped than to it is to be a rapist.
    Maybe it’s that women are more ashamed of being raped than men are of raping.
    Either way, I’m for anonymity for men until proven guilty, then banner headlines.
    False accusations are soul and life-destroying and the damage they do can’t be over-estimated.
    BTW, I agree with Rosamundi, rape can be perpetrated with objects other than penises, whether it fits the legal definition or not.

  7. Poignant blog! Contentious topic! i agree for the most part and can’t claim to truly disagree. I think the meaning of rape should be adjusted however; not only a crime committed by men (penis). I think any enforced sexual act is rape; not forgetting emotional rape. consider a man sodomizing another man by using a strap-on to me is rape – and if that happened to me, i would want the right for anonymity (another issue u bring up).
    Indeed the rapist should be publicized – the victim however should be protected regardless of societies automatic and incorrect branding of the innocent women who was violated.
    THANKS FOR SHARING THIS GREAT BLOG. THOUGH EVOKING.

    • Hello, my friend, great to see you paid me a visit!

      The problem about extending the definition of rape to include assaults with an implement other than the penis is that it starts to blur the distinction between rape and other sexual violence. Women are as capable as men of wielding an offensive weapon such as a strap-on. I think it’s the two P’s that make rape rape: penis and penetration. Neither on their own is rape. The effect of your definition would be to make penetration the only necessary element. In the legal definition of rape, penetrating the mouth with the penis is as much rape as penetration of the vagina. But if you only need penetration to commit rape, what about forcing, say, a carrot into a man or woman’s mouth? By your definition that would be rape. I’m not sure about that: it seems to be weakening the definition of rape.

      And then we have the problem of anonymity. Anonymity for victims seems to be based on the idea that sexual humiliation is in a class of its own, and I’m not sure that it is. There are all sorts of ways that one person can humiliate another, but those victims would not be able to claim anonymity. And it’s only the fact of anonymity for victims that creates the seeming fairness of anonymity for suspects.

      I realise that anonymity for victims is currently necessary in order to increase the chances that they will report it. But it still colludes with the idea that it is shameful to be raped. It’s not shameful, it’s criminal, and that’s different.

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