On Friday 10 March 2017, HHJ Lindsey Kushner Q.C. drew a 43-year legal career to a close by detaining a rapist for six years. After 14 years on the bench, her final trial at Manchester Crown Court involved a set of facts grimly familiar to criminal practitioners, in which the defendant, Ricardo Rodrigues-Fortes-Gomes (19), led the 18-year old victim, who had been drinking lager and vodka and inhaling amyl nitrate, from a city centre Burger King to a canal bank, where she was raped. Her cries were heard by a witness in a nearby flat, who called the police.
The details are scantly reported, but it appears that there was a co-defendant, and it was said that they took turns to have intercourse with the victim on the canal bank. They each claimed that the sex was consensual. The co-defendant was acquitted while Rodrigues was convicted. (For those immediately curious as to how this might be, it should be emphasised that the burden of proof means that such a verdict is not a finding that the co-defendant was innocent and that the intercourse with him was consensual; all we can divine from the verdict is that the jury could not be sure that there was not consent (or reasonable belief in consent).)
Having passed a sentence of six years’ detention in a Young Offender Institution, HHJ Kushner Q.C. took her last ever sentencing remarks as an opportunity to share some wider observations. This is not uncommon; recent years have seen retiring judges use their last hurrah to shoehorn in some long-suppressed views about, for example, the crumbling Crown Prosecution Service. Given the trial over which she had just presided, HHJ Kushner Q.C. chose the topic of sexual offences on which to offer her insight. The remarks bear repetition in full, given the interpretation that has since been attached to them:
“We judges who see one sexual offence trial after another, have often been criticised for suggesting and putting more emphasis on what girls should and shouldn’t do than on the act and the blame to be apportioned to rapists…There is absolutely no excuse and a woman can do with her body what she wants and a man will have to adjust his behaviour accordingly. But as a woman judge I think it would be remiss of me if I didn’t mention one or two things. I don’t think it’s wrong for a judge to beg women to take actions to protect themselves. That must not put responsibility on them rather than the perpetrator. How I see it is burglars are out there and nobody says burglars are OK, but we do say ‘please don’t leave your back door open at night, take steps to protect yourselves’…Girls are perfectly entitled to drink themselves into the ground but should be aware people who are potential defendants to rape, gravitate towards girls who have been drinking.”
The judge also went on to remark that “potential defendants to rape” target girls who have been drinking because they are “more likely to agree as they are more disinhibited, even if they don’t agree they are less likely to fight a man with evil intentions off”. She said a woman would be less likely to report a rape “because she was drunk or cannot remember what happened or feels ashamed to deal with it”.
“Or, if push comes to shove, a girl who has been drunk is less likely to be believed than one who is sober at the time…It should not be like that but it does happen and we see it time and time again. They are entitled to do what they like but please be aware there are men out there who gravitate towards a woman who might be more vulnerable than others. That’s my final line, in my final criminal trial, and my final sentence.”
It did not take long for a flare to be sent up. This, it was swiftly asserted, amounted to classic Victim Blaming. Dame Vera Baird, former solicitor general and Northumbria Police and Crime Commissioner, told BBC Radio 4’s Today programme:
“When somebody is raped they feel guilt and shame and they find it very hard to report it. If a judge has just said to them ‘Well, if you drank you are more likely to get raped, we are not likely to believe you and you have been disinhibited so you’ve rather brought it on yourself’ then that guilt is just going to get worse.”
“Ms Baird said the judge should have given advice to help women stay safe instead of implying “it’s your fault for having attracted him in the first place”.”
“This looks like victim-blaming and they (organisations such as Rape Crisis) are worried that, yet again, it is going to become harder to get women to make reports. That’s a terrible shame.”
Similar sentiments were echoed by numerous charities and pressure groups. They were ad idem in their condemnation – the judge was blaming victims for the horrors that they suffered at the hands of their attackers. She was “telling women that they wouldn’t be believed” and “deterring victims from coming forward”.
This is the message that has since dominated the reporting of this story. And, with respect, it is wholly and dangerously wrong.
Victim blaming – ascribing moral fault to victims for crimes committed against them – is insidious and wicked for all the reasons correctly identified by Baird and campaigners. It wrongly seeks to diminish the moral culpability of the criminal by apportioning fault to the victim, in a manner unthinkable outside the arena of sexual offences; it increases the suffering of the victim; it deters present and future victims from reporting offences; and its logical conclusion holds that the solution to preventing these offences lies solely with the women who “invite” them, rather than the men who perpetrate them.
But it is not the same thing as seeking objectively to identify factors that increase one’s risk of vulnerability to crime, and urging awareness of those factors.
The sensitivity to perceived victim blaming in the criminal courts is understandable. The law – courts, judges and lawyers – has for centuries indulged in stark and blatant victim blaming. From the historical lack of respect and credibility afforded to “unchaste women”, to 1980s judges suggesting that a victim’s clothing or demeanour meant she was “asking for it”, to the fact that as recently as 1991 a wife could not in law be raped by her husband, the law has rightly been forced to update attitudes rooted in what is at best patriarchy and at worst institutional misogyny. And, while much has improved, it would be naive to assert that such attitudes can be comfortably boxed up as historical remnants.
The Fawcett Society earlier this year published a report suggesting that 38% of men and 34% of women surveyed said that a woman was “totally or partly to blame” if she went out late at night wearing a short skirt, got drunk and was the victim of a sexual assault. A High Court judge last year made comments, similar to those expressed by HHJ Kuschner Q.C., but with the added, ill-advised suggestion that the victim had been “foolish” to have exposed herself to risk. I criticised this on Twitter at the time as deeply unhelpful, representing, while not “victim blaming” as such, nevertheless a moral judgment of victims that we should strive to avoid.
It plainly still needs to be said, and should be said, loudly, clearly and repeatedly: It does not matter what a woman is wearing. Or how much she has drunk. Her body is her own. If you violate her autonomy, the responsibility is entirely yours. No-one else’s. She is not to blame for exercising her freedom. You will not, as happened in one notorious case in 1982 at Ipswich Crown Court, find yourself handed a shorter sentence on the basis that the victim is culpable of “contributory negligence” for putting herself in a position of vulnerability. Your crime is wholly your own.
But, to repeat the point – this should not be conflated with attempts to point out ways in which people can minimise the risk to themselves. The “locking your windows to keep out burglars” analogy often reached for in this debate, and indeed floated by the judge, carries an admitted crassness, comparing as it does a crime against property with an invasive sexual offence; but that does not diminish its inherent truth. Saying that there are common factors which are exploited by criminals is expressing empirical fact. It is not a value judgment on character or behaviour. It no more increases the moral culpability of the victim or decreases the agency of the offender than pointing out that going out without shoes increases your chances of cutting your feet on broken glass. You are not in any way morally to blame for someone else leaving broken glass on the floor, nor for expressing your right to dress as you please; the message is simply: here’s what experience teaches us you can do to minimise this risk.
In the instant case, it is obvious that this was all that the judge was doing. She was talking about a very specific type of offence which, although thankfully rare, crosses the criminal courts far more often than humanity can bear; namely, cases where a highly intoxicated lone young women is targeted by a predatory rapist due to her vulnerability. This is not a myth created by misogynist judges to frighten women into never leaving the house – it is an appalling reality. And what is more, as the judge carefully explained, the specific vulnerability of being blind drunk can be exploited not only in the commission of the offence, but a second time over by the defendant seeking to deny his guilt at trial. In the case that HHJ Kushner Q.C. had just heard, the guilty defendant had alleged consent. I can guarantee you that the defence barrister will have spent significant time in cross-examination tugging away at the minor details of that fateful evening to demonstrate how the alcohol had inhibited the victim’s memory in an effort to undermine the reliability of her evidence.
None of this, as the judge was at pains to say, is to in any way blame the victim for what happened to her. But it would be a nonsense to suggest that, in cases such as these, one’s vulnerability is not heightened by drinking to excess.
It is in many ways bizarre that at a time when there is a belated emerging social consensus that tackling “general” crime requires a multi-faceted approach, looking not only at the individual culpability of the offender but the broader environmental and causative factors that create the conditions for crime to occur, the tune of self-professed progressives is often one-note when it comes to sex offences. In political terms, emphasising that an effective criminal justice policy has to recognise the social and environmental factors that facilitate crime, and that so doing does not excuse the moral culpability of the individual, has been a gruelling campaign of the centre-left. It is usually the gravel-throated wails of the reactionary right that drown out attempts at nuanced assessments of crime that move beyond locating cause (as opposed to moral culpability) solely in the offender. But this is the adopted philosophy of those who shout down HHJ Kushner’s advice with the mantra of, “Rape is only caused by rapists”.
The choices of the offender are the largest part of the problem, of course. But it is blinkered to suggest that the solution to making the public safer lies simply in condemning louder and punishing harsher. Unpleasant as it is to accept, we will never eradicate violent and sexual crime. Never. There will always be people – usually men – who irrespective of the law, will rape. As long as we recognise that truth, it is incumbent upon us to help keep each other safe. This we do by focussing on the offender, and potential offenders, through social, criminal and penal policies combining education, deterrence, rehabilitation and punishment; but also by limiting opportunity for those who are determined to offend. A solution that focusses solely on the offender, asserting that there is nothing that can be done by the public to protect themselves, is no real solution at all. It’s cyclopic, prioritising the purity of The Cause ahead of pragmatic realities.
That, I fear, is what we are witnessing with this latest outburst against the judge.
And, again, in making these observations, I do not question the sincerity of the cause. And I understand why, whatever label one puts on the judge’s comments, it might still be suggested that they were not helpful. There is a justifiable worry that emphasising personal victim safety might deflect attention from the offender’s culpability in a way that is superficially extremely unattractive. One could argue that the prevalence of such remarks reinforce misnomers about sexual offending, and disguise more complex realities, such as the fact that the “stranger rapist in the bushes” is statistically rare, the offender and victim most likely to be known to each other. One might contend that the discussion about what steps it is objectively “reasonable” for a woman to take can easily fissure into normative value judgments about how women should act, or dress, or otherwise restrict their own liberties.
I would argue that none of those arise in this case – the judge’s remarks appear plain, sensitive and carefully targeted – but I can see why those who dedicate their lives to supporting victims may tire of what they perceive as an imbalance in public discourse, and wish that emphasis were placed elsewhere.
Nevertheless, whatever may fairly be tossed into the debate, and whatever deeper, noble motivations may pertain, the claims of “victim blaming” here are entirely unjustified. The ubiquity with which the term “victim blaming” is now thrown around, like “fake news” by a deranged faux-Presidential clown in a wig, risks degrading its meaning to “something we’d rather not hear”. Worse than that, it results in vital, non-judgemental messages about personal safety being lost in the din.
Judges and police trying to press home the message of personal safety find themselves like doctors telling a patient that there are certain environmental factors that increase their risk of vulnerability to a disease, and having their offer of advice angrily rejected as “victim blaming”.
In fact, it is worse than that. To stretch the analogy, Vera Baird’s words are akin to telling people: “If you go to see a doctor, you will suffer victim blaming.” Dame Vera, although I don’t doubt motivated by a genuine desire to improve the lot of victims of sexual offences, is becoming a repeat offender in this area, the first to heighten alarm rather than assuage concerns. The quote to the BBC, in which Ms Baird suggested that the judge had said “you’ve rather brought it on yourself” is, I’m afraid, simply untrue. Either Ms Baird did not read the remarks before commenting, or, worse, she did and has dishonestly misrepresented them to support her point.
It is a genuine shame that the publicity generated by the judge’s comments were not seized upon as a platform for a united message of support for victims, instead of being exploited as an opportunity for division and recrimination. Imagine if, instead of rushing to condemn this judge – who, with respect, will have a far deeper, broader and more objective understanding of the topic than many single issue campaigners – Vera Baird had said something like this:
“As this highly experienced judge rightly recognised, crimes of this type are always the fault of the offender. Furthermore, this type of rape is rare; but there are simple steps that we would urge people to take on nights out to increase their personal safety. Predators often seek out women who are drunk and alone and exploit their vulnerabilities. Of course go out, drink and have fun – but just take care. And, should the worst happen, please do not be deterred by media scare stories from reporting what has happened.”
It has been suggested that such advice is otiose, or patronising. As the Guardian was told by End Violence to Women:
“The group pointed out that women already take steps as a matter of routine. “They leave early, get taxis instead of buses, don’t wear ‘that’ top or ‘that’ skirt and they still get raped.””
And of course, the judge’s advice is not a panacea. It cannot and was not intended to be. But tragically the daily experience of the criminal courts shows that the message about personal safety still bears repetition. It won’t erase the problem, but it may help, in a narrow subset of cases, to save a few potential victims from having to pick up the fragments of their shattered lives off the courtroom floor. And if it does, it is a message which should be cheered by us all, with its judicial messengers celebrated rather than beaten into submission by misplaced accusations of “victim blaming”.
Well argued 🙂
It is hard to draw comparisons. It is not quite the same as telling someone not to drive their car when drunk. It might be similar to advice given to a man who walked into a tough pub somewhere and started making fun of the regulars until he got beaten up.
This problem goes much deeper and has to do with the very sexualized society we now inhabit. I don`t know if anyone has done any research on male sexuality, but most men will make assumptions based on body language, although I don`t think this applies to men who commit multiple rapes. Nor do I know if there is a type of personality or set of personal circumstances characteristic of rapists.
What I do know is that there is a high level of depression and suicide among young men and that some of this is caused by a sense of worthlessness which is increasingly common throughout society. See Erich Fromm “Fear of Freedom”. If there is an approach that would make a valid contribution to changing male attitudes to their imagined “right” to sex, I have not heard of that but as a pensioner I find it hard to imagine myself as being in a target group of likely rapists. What I do know about is the misery of loneliness that contributed to a state of manic depressive psychosis and three months in hospital. But although my thoughts never turned to violent action against anyone, I have long been aware that we live in a sick society, in which people are judged largely by their money & possessions and that no-one seems to want to address the problems arising. Not since 1967 anyway.
This post is indeed well argued, and sensitive to the issues involved. But I’m still going to have to take the other side.
The obvious rejoinder to this argument is suggested in the Guardian quote at the end – ‘don’t you think they already know that?’. Surely almost all women are already aware that getting blind drunk is reckless and irresponsible, and potentially makes you more vulnerable to sexual predators. It would be hard to find a woman who hasn’t heard that message many times from her family, friends and society in general.
I appreciate that what the judge said here wasn’t strictly speaking ‘victim blaming’, and certainly wasn’t intended as such; but it still came off as giving that impression. The fact is, she could have chosen to use her final words from the bench to address men, and said, “Do not take advantage of vulnerable women. This is what happens if you do.” Instead she implied that preventing sexual violence is primarily the responsibility of women.
Of course, there are things women can do to potentially make themselves safer, and giving such advice has its place. I don’t think this was the place for it, and the fact that the judge’s words focused on the victim’s behaviour rather than the perpetrator’s seems to me to miss the main point of what happened here.
The problem with the frequently repeated comparisons with burglary (besides comparing women’s bodies to chattels) is that burglary doesn’t have the same set of popular myths associated with it. With the occasional rare exception, victims of burglary are rarely accused of having ‘brought it on themselves’ or deserving their fate. In that context, these comments were unhelpful.
It’s true that ‘rapists are responsible for rape’ has become an endlessly repeated dogma. But it still bears further repeating because to the broader public, it still hasn’t sunken in yet.
(As an afterthought: we probably have different reactions to this partly because we’re coming at it from different places. My work, mostly in family cases, frequently involves dealing with young women who make the same mistakes over and over again, getting into relationships with highly unsuitable men, and getting pregnant when they shouldn’t. That’s not quite the same as rape, but it is deeply frustrating; yes, vulnerable young women need help and advice to stop them getting into these situations. Even so, the point remains that they’re the ones being taken advantage of, and moral responsibility should always lie primarily with the one who’s taking the advantage.)
Thank you. I agree with all said above, and would add this rhetorical question: Why does the issue of drunken vulnerability only ever seem to arise in the context of sexual violence? Why are not the public at large ever admonished not to get blind drunk because it increases your vulnerability to mugging, or pick-pocketing, or being cheated or tricked by fraudsters?
“‘don’t you think they already know that?’. Surely almost all women are already aware that getting blind drunk is reckless and irresponsible, and potentially makes you more vulnerable to sexual predators. It would be hard to find a woman who hasn’t heard that message many times from her family, friends and society in general.”
If that is the case how do you explain a significant cohort of women in the small city where I live, go out dressed with so few clothes that they’d be cold even in Malaga, and leave bars and nightclubs totally drunk every weekend?
I would suggest too that behaving in this manner not only leaves the women open to assault, but it makes the defence of the attacker relatively easy.
The question then is, why do people get blind drunk regardless? Simply telling them not to doesn’t work, and it also only too easily ends up accommodating stigmatising mindsets (both victims being blamed and victims blaming themselves), and it can serve to derail us from addressing the causes at a societal level.
In regards to the specific issue of heavy drinking, we need to address the underlying causes. Here’s one very specific example: https://opinionator.blogs.nytimes.com/2013/03/27/the-destructive-influence-of-imaginary-peers/
Bias warning – I was in practice on the Northern Circuit and knew Lindsey before her appointment to the bench.
Firstly, HHJ Kushner QC has spent the last 14 years (more if you include her time as a Recorder) telling convicted men “Do not take advantage of vulnerable women. This is what happens if you do.” This was an opportunity to go beyond that and she did it with grace and compassion.
Secondly, it might strike some as odd that “‘rapists are responsible for rape’ has become an endlessly repeated dogma. But it still bears further repeating because to the broader public, it still hasn’t sunken in yet”, and yet “getting blind drunk is reckless and irresponsible, and potentially makes you more vulnerable to sexual predators” is something we no longer need to say because “It would be hard to find a woman who hasn’t heard that message many times from her family, friends and society in general.” I’d submit that perhaps both need to be said, to remind and to educate the next generation
If I were to get drunk and walk alone down a dark alleyway, I could be at risk of being beaten up or robbed, so I take steps to keep myself safe. As a man, it is unlikely in this situation that I would get raped. The consequences for a woman are potentially more serious, and it isn’t victim blaming to advise someone to be careful.
Great post, well said.
That is simply not an example that is ever used on its own. It is always brought up in response to objections from women to being forever told that we have to police how we dress and behave in order to minimise the possibility that something will be inflicted upon us which, after all, is illegal. There simply are no widespread public awareness campaigns aimed at people in general — or, perhaps, say, young people not used to alcohol/aware of their limits yet — warning them not to get themselves blotto because it puts them at risk of being a targeted for general crime.
There is no “general public don’t get drunk” campaign equivalent to, eg, “How much does an illegal minicab cost? Ask a rape victim,” or the “THINK!” road safety campaign aimed at young people in general (which didn’t, to the best of my recollection, have any posters about drinking and crossing the road, they were all about looking at your phone etc). Unless it’s the dangers of drunk driving, (which show how drunkenness puts people at risk of causing harm, rather than suffering it,) campaigns against drunkenness seem invariably aimed at “irresponsible women getting drunk and getting themselves raped” (yes, I paraphrase). It’s a ridiculous double-standard and it’s not acceptable.
Alisdair, above, put it best. “I appreciate that what the judge said here wasn’t strictly speaking ‘victim blaming’, and certainly wasn’t intended as such; but it still came off as giving that impression. The fact is, she could have chosen to use her final words from the bench to address men, and said, ‘Do not take advantage of vulnerable women. This is what happens if you do.’ Instead she implied that preventing sexual violence is primarily the responsibility of women.”
It was victim-blaming. And it buys into rape myths. See here: http://rapecrisis.org.uk/mythsvsrealities.php. Note myth no. 1. Women shouldn’t get drunk and wander on their own.
But note the statistics: 90% of victims know their attackers. http://rapecrisis.org.uk/statistics.php. They might be fathers, uncles, grandfathers, brothers, husbands, boyfriends, friends, colleagues. One statistic seems to suggest vicitims may have consumed alcohol in 50% of rapes reported So the advice is again, women don’t drink.
The comments on your twitter thread are consistently things like “that’s what I’ll tell my daughters”: to avoid getting so drunk so they are vulnerable, they can’t remember details and they’ll be a rubbish witness in the box. However, there is not sufficient statistical information to suggest the issue is about women getting blind drunk. It seems to suggest, don’t have a drink in the vicinity of a male that you know.
But the same advice about personal safety is never given to men who are victims of muggings . Typically 3.2% of men experiences violent crime in 2014 compared to c2% of women. Nor is the advice about how to decrease men become sexual offenders. (That’s why one of your twitter thread responders, was getting a little irate about the continued use of the words “women” “drunk” “rape”.)
There are studies that say that easy access to pornography in our digital world is increasing the perception that aggressive male sexual behavior is normal. That it has an impact on those who watch it. It’s not to say this causes rape, but why aren’t we talking about what does. Why aren’t those parents who speak about how they will tell their daughters to be safe, talking about how they will talk to their sons about normal sexual behavior and relationships. About the boundaries of consent. I talk to my daughters about consent. I don’t know if my friends with sons do the same.
Rapists are normal. They look like your father, uncles, grandfathers, brothers, husbands, boyfriends, friends, acquaintances and colleagues. Because they are. Not because all men are rapists but because rapists (97% are men) cut across class, race, age. They don’t have distinguishing features but are the ordinary people amongst us. So when the advice, again becomes, keep safe, drink less, don’t walk out after dark, it can make a rape survivor become a little angry.
Not only that. Rape brings shame. It brings guilt. It brings self-blame. So a judge speaking up like this at the end of a trial convicting a horrendous and rare stranger rape, will really help no one. That’s why it feels 100% like victim blaming. Until all these voices start speaking about how we stop male violence against women, and how we get men to behave differently, then a lecture on personal safety, however well meant, however it recognizes the perpetrator’s sole responsibility, seems like yet another case of victim blaming and avoiding looking at how we bring up our sons to change this cycle.
And as a lawyer and a survivor, whilst I appreciate the well-argued blog above, I think it is missing the point entirely. If I hadn’t been drunk, it might not have happened to me. But then it turns out the bigger issue was hanging out drunk with a close, trusted friend.
The burglary analogy doesn’t work. Closing a window doesn’t impact on the resident’s freedom or life. You could make the analogy if residents were advised not to leave their home for long periods of time to reduce risk of burglary- but of course they are not.
Women are constantly told how their behaviour increases risk. Im not sure other victims are told the same. Scam victims arent repeatedly told, “well if you do insist on being greedy and stupid…” Elderly women aren’t told “well if you will insist on being so trusting when you open the door, flaunting your wedding ring..”
Ultimately, if you’re going to will someone’s behaviour to change- why pick the rape victim’s and not the rapist’s?
Not getting so drunk that you lose control over your environment is not an infringement on your freedom either. It’s not something that is necessary to function in society, it’s not something that would cripple your social life if you do without. Mind you, no one is even saying that women should not consume alcohol at all, only to moderate their intake in certain social situations where it would be inadvisable to be so inebriated as to become a target for advantage-takers. If you’re so dependent on alcohol that drinking to the point of blacking out is some kind of right you feel you must hold on to no matter what, then you may have a drinking problem and you need to seek help for it. Drunkenness is overglorified in our culture and it’s harmful to both sexes. If anything, the real failure is that we don’t council men against hurting themselves with excessive alcohol consumption. Men are not immune from assault.
Also, fighting rape culture and giving women practical safety tips to mitigate the risk of assault are not mutually exclusive. Just like we punish burglars but we also stress the importance of securing your home. We will never live in a world where we can do whatever we want wherever we want without incurring danger upon ourselves. It’s not fair, mai c’est la vie. You can scream and shout all you want about how the victim’s behavior should have no bearing on her getting assaulted, it’s not going to magically make rapists think twice about harming women. In fact, I’d argue that you’re not really an advocate of women if you encourage them to be delusional about the world they live in and their safety prospects. If you’re really serious about reducing the frequency of sexual assault, advising women to be smart and sensible about their surroundings matters just as much as calling on lawmakers to focus more keeping rapists off the streets and less on what their victims should do.
HHJ Kushner’s comments reminded me uncomfortably of the comments (also made as she retired) by HHJ Mowatt, a highly experienced and hugely respected Crown Court judge in Oxford (http://www.oxfordmail.co.uk/news/11431450.Judge_in_rape_trail_warning_____Conviction_rates_will_not_improve_until_women_stop_drinking_so_heavily___/) and even more of the wave of condemnation that greeted her remarks back then.
I was troubled at the time, and torn between some of the less exaggerated and better argued positions expressed at the time to the effect that she had been ill-advised to voice her views in the way she had because of the very risk she had herself identified, that her remarks could be perceived as in some way mitigating rapists’ guilt, and making women in some way partially responsible for the fate that had befallen them.
But reading and hearing the reactions to Judge Kushner’s remarks makes me wonder why we are so quick to dismiss and seek to rubbish the conclusions reached by two very eminent women judges, who each knew the reaction their observations risked invoking, but nevertheless felt compelled to put their considered opinion on the record.
What lessons could we learn from their experience and their clearly stated desire to reduce the incidence of the repugnant crime of rape and ensure that more rapists are convicted for their crimes?
Instead, the overwhelming response has been to shout them down and accuse them of victim blaming (and worse).
I therefore greatly welcome the Secret Barrister’s considered and measured analysis and hope that, once those who just wanted to find an excuse to get their names into the media have moved on to other targets for their indignation, someone, somewhere will take a long measured look at their opinions and ask whether the views they had knowingly risked being “pilloried for” (as HHJ Mowatt put it back in 2014) didn’t at the very least deserve the courtesy of a considered, collective attempt to understand why they had felt compelled to put those views in the public domain.
Might one consider the possibility that although they are both women and experienced judges, they are nevertheless not immune to social messaging indicating that women have to take responsibility for their own rapes where they are deemed to have behaved “irresonsibly”? That they may well have absorbed that messaging and, by means of confirmation bias, seen it confirmed to them in the trials before them?
I ask again the question: why are men not routinely asked in this way about how their behaviour, and particularly their consumption of alcohol, may have contributed to crimes perpetrated against them? Why is drunkenness not brought up in response to muggings, street theft, fraud? The fact that one can consent to sex doesn’t really play into a scenario where a woman is dead drunk on the side of a canal when the act is taking place and the *two* men involved are complete strangers to her. The judge’s comments were completely out of place with the case she had just heard.
Society has never condoned burglary. In contrast, society has condoned non-consensual sex with women until quite recently, as you point out in the article, depending on the circumstances. Sex with someone else’s wife was rarely considered OK, even if consensual, because wives were regarded as property; similarly, sex with an unmarried daughter of the family made her unmarriageable and might give the family an extra mouth to feed, but whether she consented or not didn’t come into it. Women’s agency over sex, the fact that they can consent and that their consent is necessary, has not until recently been a popular idea in Western culture. Rapists rape in part because society tacitly condones rape. To address rape, we need to make society less accepting of rape and less willing to forgive rapists and other people who act as if women do not have sexual agency. For example, in news coverage of rape trials, mention is often made of the defendant’s positive qualities, his value to society and the brilliant career that may be ruined by the accusations levelled against him (implicitly valuing him more highly than his alleged victim, or discounting her account of what happened). This is rarely a feature of trials for burglary. I do not think that pointing this out is a one-note approach; I think you have overly simplified the argument which Vera Baird and other campaigners are making.
Apart from that, drinking alcohol is a risk-taking behaviour. Some level of risk-taking is beneficial to the individual and to society; you take a risk every time you stand up for yourself, or apply for a promotion, or leave the house. Women are in very general terms less risk-taking than men, perhaps in part because they are less often rewarded and more often punished for taking risks. Going out and getting completely hammered is unwise for men as well as for women, but men very rarely face consequences for it beyond the hangover the next day, and accordingly it is seen as a normal part of young adulthood for men, who do not face having their freedom constrained out of a desire to protect them as young women generally do. We should be trying to even out the risks rather than telling women to be more wary if we want women to thrive in work and education and attain full equality. Going out for “work drinks” and having a couple of pints or glasses is socially acceptable and can be highly beneficial as bonding and networking time, unfortunately for people who do not or cannot drink. However, many women participate in this reluctantly and sparingly and live with the consequences to their careers precisely because they do not want to get into a situation where their boss or the senior partner or the creepy guy who hangs out around the water cooler can make a pass at them or worse and later pass it off as “everyone knows I’m a decent and upstanding family man, it was the drink talking, wrong on both sides, what a spoilsport, that’s not how I remember it”, etc, and their mutual colleagues will take his side, or at least try to “smooth things over” rather than deal with the fact that someone they know is not someone women can trust.
Women also get raped while completely sober, when wearing unsexy clothes, while in their own homes or places of work or while walking in perfectly “respectable” areas, when they haven’t flirted with anyone or done anything else that might by any stretch of the imagination be viewed as consent or behaving recklessly. If I lock my doors and windows and have a working burglar alarm, I am very unlikely to be burgled, but that is not the case with rape. There is no magic “please don’t rape me” sign that I can hold up, no matter how careful I am. Locking my doors and windows isn’t a huge constraint on how I live my life, and it greatly reduces my risk of being a victim of crime, so the risk:reward is good value. In contrast, a woman who took *none* of the risks people warn about and who was really careful *all the time* would find her life had a lot of extra hassles in it – having to go the long way round to her destination, needing extra money for taxi fares, having to drag a friend out on a social occasion or stay home because she can’t get anyone to go with her, constantly being the only one wearing bland trousers to the party, drinking water and hoping nobody notices, not attending conferences away from home. Having done all that, she could still get raped.
There is also the fact that burglary is an equal opportunity crime, whereas rape falls disproportionately on women and is therefore part of the inequality built into our society. It would be nice to live in a world where we didn’t have to lock our doors, but locking doors is something everyone has to remember to do, so it equally inconveniences everyone. The cost of trying to avoid rape is borne almost entirely by women, who are already at a disadvantage in other ways (economically, politically and so forth). Having to think about whether this party or that retreat is safe for us to go to, and whether we have an escape plan or a safe person to call if something goes wrong, is extra work being put on our shoulders, even if we do end up going and participating. This is putting us further behind equality with men. What would be really helpful is if more men took it upon themselves to stand up for women, to tell their friends that the sort of mild harassment often used to test the waters isn’t OK, to exclude people who persist in making women feel unsafe, to organise work and social occasions in such a way that non-drinkers feel comfortable and everyone can get home / back to the hotel easily at whatever time they like, and to take women’s complaints seriously. This would be roughly equivalent to a Neighbourhood Watch approach, where responsibility for avoiding burglary rests on everyone rather than just on the householder who has to remember to lock the door.
Shades of R v Evans & McDonald?
Very good arguments. That’s the difference between victim blaming and simply protecting yourself
Can I refer you to the comment I made on the 204.2017 Have worked with Lindsay Kushner and She is excellent
I have worked with HHJ Lindsay Kushner and she is one of the most considerate, compassionate judges I have met,. She is full of common sense and no, She was not victim blaming but asking people to use common sense.
Perutusaria elucidates why the judge’s attitude is problematic, and I quote: ”Women also get raped while completely sober, when wearing unsexy clothes, while in their own homes or places of work or while walking in perfectly “respectable” areas, when they haven’t flirted with anyone or done anything else that might by any stretch of the imagination be viewed as consent or behaving recklessly. If I lock my doors and windows and have a working burglar alarm, I am very unlikely to be burgled, but that is not the case with rape. There is no magic “please don’t rape me” sign that I can hold up, no matter how careful I am. Locking my doors and windows isn’t a huge constraint on how I live my life, and it greatly reduces my risk of being a victim of crime, so the risk:reward is good value. In contrast, a woman who took *none* of the risks people warn about and who was really careful *all the time* would find her life had a lot of extra hassles in it – having to go the long way round to her destination, needing extra money for taxi fares, having to drag a friend out on a social occasion or stay home because she can’t get anyone to go with her, constantly being the only one wearing bland trousers to the party, drinking water and hoping nobody notices, not attending conferences away from home. Having done all that, she could still get raped.
There is also the fact that burglary is an equal opportunity crime, whereas rape falls disproportionately on women and is therefore part of the inequality built into our society. It would be nice to live in a world where we didn’t have to lock our doors, but locking doors is something everyone has to remember to do, so it equally inconveniences everyone. The cost of trying to avoid rape is borne almost entirely by women, who are already at a disadvantage in other ways (economically, politically and so forth).”
‘Apart from that, drinking alcohol is a risk-taking behaviour. Some level of risk-taking is beneficial to the individual and to society; you take a risk every time you stand up for yourself, or apply for a promotion, or leave the house. Women are in very general terms less risk-taking than men, perhaps in part because they are less often rewarded and more often punished for taking risks. Going out and getting completely hammered is unwise for men as well as for women, but men very rarely face consequences for it beyond the hangover the next day, and accordingly it is seen as a normal part of young adulthood for men, who do not face having their freedom constrained out of a desire to protect them as young women generally do. We should be trying to even out the risks rather than telling women to be more wary if we want women to thrive in work and education and attain full equality.’
SO you see, this is more complicated than simply a question of where the moral culpability of sexual assault lies, which, as everyone agrees (or should), with the perpetrator.
And I also refer you to Bronwen’s question, ‘I ask again the question: why are men not routinely asked in this way about how their behaviour, and particularly their consumption of alcohol, may have contributed to crimes perpetrated against them? Why is drunkenness not brought up in response to muggings, street theft, fraud?’
Surely, if you ‘use’ your common sense, the onus should ALWAYS BE on people to NOT take advantage of people who are vulnerable? Why should a person be obligated to protect themselves from having their personal security violated? Do you expect men to take extra precautions to protect themselves from being attacked or assaulted, and internalize within them that there is always a risk they could be assaulted, be a victim of a violent crime if they are intoxicated and should take extra precautions to prevent that? Why don’t we ever tell men to protect themselves from being assaulted or attacked? Why isn’t this something we encourage men to internalize?
Why don’t we ever ask, what precautions should a person take to ensure he/she does not perpetrate or violate a person’s bodily integrity/physical security? Why don’t we ever think that people have a responsibility to ensure that their behaviour and conduct does not fall outside accepted moral boundaries? WHY is it that we think a woman being drunk is reckless and irresponsible for exposing herself to risk of being sexually assaulted and NOT the drunk perpetrator who is viewed as reckless and irresponsible for allowing himself to aggravate his chances of committing a violent crime? In fact for other crimes, like drunk driving, we rightly say the OFFENDER needs to take the responsibility to ensure HE OR SHE IS CAPABLE of DRIVING. BUT when it comes to sexual assault, why is there not the same responsibility/onus for people to ensure they do not aggravate the risk of them perpetrating an assault against another person due to drug/alcohol intoxication?
It is ludicrous to suggest that a person can reduce/minimise the risk of something bad happening to them, like for example, an assault or burglary based on a variable that is completely out of their control i.e. the thoughts and actions of the offender. Some offenders are more brazen than others. Some will deliberately target those they perceive to be vulnerable, like those whom maybe they think they can manipulate, overpower, or dupe, etc. And they don’t just target people who are drunk. They can target people who are stone cold sober and who are super cautious. All that is necessary for them to do that is have the ability to physically overpower the victim. They don’t necessarily need the victim to be drunk in order for their malicious intent to be satisfied. Certainly not in the context of intimate/domestic relationships, where most sexual assaults occur.
There is no way a person can minimise their chances of being the victim of a crime like sexual assault. There is no way a person can realistically anticipate the circumstances in which a perpetrator might seek to take advantage of them. If you go to a club and get drunk, theoretically you can get raped. If you are not drunk and you are simply out on the street, someone could target you and sexually assault you. (though most instances of sexual assault DO NOT occur under these circumstances). Someone could break into your home and sexually assault you. Someone could manipulate you into dating them, believing they are all sweet and loving, and then manipulate and coerce you into virtual sexual slavery, whereby you are forced to provide ‘sexual services’ to ‘clients,'(usually in the context of organised crime) or provide ‘sexual services’ to them personally (can be in the context of say, reproductive abuse), not caring about your right to give and refuse consent, to bodily autonomy and integrity.
If you are a uni student living on campus, you could get raped. Statistically speaking, you are more likely to get raped by someone who know. It could be someone in your family. It could be a boyfriend, stepfather, spouse, friends. You could get raped in your own home, in a care home (for example, sexual assault of mentally disabled). You could be sexually harassed by a co worker you thought was nice. You could get sexually assaulted by a priest, by a religious leader.
How the hell is someone supposed to adjust their behaviour based on all these potential scenarios in which they have very little control over? It is absolutely unrealistic.
WHERE IS THE LINE? How much is required of the victim to minimise the risk???? And minimise the risk to what level? AND TO WHAT EXTENT? minimise the risk of sexual assault like genital penetration, minise risk of them being sexually harassed, minimise the risk of them being sexually abused, minise the risk of them being subjected to some form of sexual violence? WHY is this principle not extended to other crimes, like victims of drunk driving, of physical assaults/violence, victims of murder/mass killings? Victims of violent robberies, say a shop robbery? (and other crimes in which the behaviour of perpetrator is a variable factor completely outside victim’s control)
“There is no way a person can minimise their chances of being the victim of a crime like sexual assault.”
You are being dishonest with this statement and you know it. No, you cannot guarantee that you won’t ever be a victim of sexual assault no matter what you do but you can absolutely minimize the risk in certain situations by using common sense. This like saying that wearing a seatbelt always won’t protect you from getting killed in an accident, so you shouldn’t even bother. Life is never without risk, you can be the most safety-minded, risk-averse person in the world and something horrible may still happen to you. However, it’s still not an excuse to utilize some degree of common sense and not take unnecessary risks in certain situations.
And guess what? We routinely warn people not to go strolling through crime-ridden neighborhoods with visible signs of affluence on their person or use ATMs past a certain hour in such neighborhoods in order to mitigate the risk of being mugged. We warn shop owners to properly secure their businesses in order to reduce the likelihood of robberies. In fact, if they don’t take any basic security measures and a robbery occurs, the insurance company may not compensate for the damages. Same for unlocked cars. Do you consider that victim blaming? It appears that in all the situations you described people are perfectly okay with having to do their part to minimize the risk of being victimized, even with the knowledge that it confers no immunity from terrible things happening. But for young women such as yourself, the concept of personal responsibility is inherently sexist and should be waived for you. Good luck going through life with that childish mindset.
if anyone’s childish, it is you. The analogy between minimising risk of robberies and risk of being sexually assaulted is deeply flawed because you forget that the vast majority of sexual assaults are committed by someone the victim knows, NOT by random strangers in the street.
So what level of ‘risk taking’ is unnecessary by your definition?
Should all women treat every man they know as a potential rapist?
The onus should be on people taking steps NOT to sexually assault someone and to be aware of, respect and build a culture of consent. That is the only real, long term solution.
As ever, Rachel is deliberately misunderstanding your response. Of course it is always the perpetrators fault in any crime. However, that does not prevent one taking precautions: hiding ones pin when using an ATM, not leaving a handbag on an unoccupied car seat, locking windows when out, etc, etc. However, do not try and confuse Rachel with facts, her mind is already made up. Anyway, she will be too busy getting ready for her next “slut walk”.
has this case been reported in formal law reports?
Is there anyone who doesn’t know that getting blind drunk can potentially leave them vulnerable? So the question is, why do people get blind drunk regardless? We need to address the *underlying* causes. Here’s a very specific example: https://opinionator.blogs.nytimes.com/2013/03/27/the-destructive-influence-of-imaginary-peers/.
I think both Judge Kushner and yourself are entirely sincere in your motives, but simply “urging” people to behave differently doesn’t work, as the University in the article I’ve linked to discovered. Furthermore, as well as coming across as condescending, it can only too easily end up accommodating stigmatising mindsets (both victims being blamed and victims blaming themselves), and it can derail us from addressing the causes at a societal and cultural level.
Following on from my last comment, what would I have said in Judge Kushner’s place?
I would raise the same concern, but frame it in a *collective* way, e.g. “From the cases I’ve seen in court over the years, I am very concerned about the dangers of drink culture in our society, and the role it can play in leaving innocent people vulnerable to predators. As a society I feel we have an urgent responsibility to explore and address the causes of endemic binge drinking, and also, where possible, look at how we can create safer environments in which to drink”. In short, I would seek to bring the issue to public attention in such a way that I appeal to our collective responsibility towards the vulnerable, and in which we seek to explore and tackle the root causes, rather than exhorting women individually to change their behaviour.
The only comments I might direct specifically at women would be factual observations they might not already be familiar with, such as the fact that there are biological reasons women have a lower tolerance for alcohol *even after* allowing for difference in body size, so they will not only get drunk quicker, but they could damage their health much more easily than they imagine – and I would also excoriate the drinks industry for targeting women and for the role it’s played in promoting a drink culture: http://www.ias.org.uk/uploads/pdf/Women/women_the_new_market_final.pdf