Bad Ass Women’s Activist(s) of the Week: Smacking Down Rape Apologists Edition

by Cara on March 7, 2008

in activism, bad ass women’s activist of the week, courts, Europe, feminism, International, misogyny, patriarchy, politics, rape and sexual assault, slut-shaming, violence against women and girls

A defense attorney has yet again made a highly offensive argument about how a victim was advertising her desire to be raped by her choice of clothing. But this time, instead of just saying “oh well,” or “tsk tsk” or “everyone deserves a defense no matter how misleading and unethical,” a government official is actually doing something about it (emphasis and brackets mine).

An MSP is demanding action from the legal profession after a lawyer used the way a teenage sex assault victim was dressed as a defence for a client.

Iain Smith also brought up the 15-year-old’s sexual history and said she was not vulnerable.

His client, Rikki Tainsch, was given three years probation for plying the girl with drink then attacking her.

SNP MSP [Scottish National Party Member of Scottish Parliament] Roseanna Cunningham has lodged a parliamentary motion calling for such comments to be banned from the courts.

Tainsch, who had never met the 15-year-old before the day he attacked her, took her to his home in Tibbermore, Perthshire, in August last year.

He then gave her enough vodka and Irn Bru to make her violently sick.

She went to bed feeling unwell but woke to find the 24-year-old assaulting her.

During the trial at Perth Sheriff Court, Mr Smith said the teenager had been “scantily clad”, wearing shorts, black boots and a white top.

He also stated: “There was a suggestion the girl had been sexually active before.

“I don’t think it is fair to say this was a very vulnerable person.”

Damn straight these kinds of comments should be banned from court. I’ve made this argument more times than I can count (you’ll find many examples under the slut-shaming and courts gone crazy categories). Thank you, thank you, thank you Ms. Cunningham. If it hasn’t been made clear yet, she really is a bad ass:

Ms Cunningham said: “This case underlines much of what is wrong with the way in which our legal system deals with rape and sexual offences.

“To use as mitigation the way in which a 15-year-old girl was dressed or to question her sexual history should be absolutely unacceptable.

“The victim was under 16 and that makes her vulnerable. There should have been no question about that.

“No wonder so many victims of sexual crimes are unwilling to report their experiences to the police if this is the sort of treatment they can expect should the case come to trial.”

Ms Cunningham added that she would be writing to the lord advocate, the solicitor general, the justice minister and the Law Society of Scotland about the case.

A clarification: Sixteen is the age of consent in Scotland. I don’t think that Cunningham is at all implying that these kinds of arguments would be better if made about a woman of any older age, but pointing out the particularly irresponsible and disgusting nature of making the argument in the case of a girl who could not legally consent even if she wanted to.

She’s absolutely right on her other points, as well — this is one of many very big reasons why more women don’t report sexual assault. Even in cases where the woman understands that she was assaulted, that it was not her fault and she deserves justice, there is a good and valid justification for why women choose to remain silent. It’s because of asshole attorneys like this one, the courtrooms that allow this type of behavior, and the juries that buy into it.

But Cunningham isn’t the only one who has decided that she will no longer allow her fellow-women to be treated in this way by rapists and those who apologize for them. A few weeks ago, I wrote about the horrifying case of a South African woman who was publicly stripped of her clothes by male taxi drivers and then sexually assaulted and doused in alcohol while onlookers laughed and cheered. The excuse they gave for their actions? She was wearing a miniskirt.

Now, South African women are fighting back.

Hundreds of South Africans marched on central Johannesburg on Tuesday defending the right of women to wear miniskirts without harassment.

The picket was staged near the Noord Street taxi rank where a young woman had her clothes torn off by taxi drivers and hawkers last month, allegedly for showing too much skin.

Her assailants allegedly touched the woman’s private parts while pouring alcohol over her head and calling her names.

The protesters, mostly women and many wearing miniskirts themselves, carried placards reading: “We love our miniskirts”, and “We aren’t road signs, you need to respect us”.

Mpumi Ngidi, 26, said she was frequently harassed.

“If you are caught between the pavement and a (vendor’s) stall and you cross a group of men, at least one in three will try to touch your boobs, your ass …” she told AFP.

“I don’t wear miniskirts, I don’t dress in a sexy way or dress up. It is partly a defense mechanism.”

Let me just say that a quality I respect most in other feminists is the ability to be mad as all hell and yet still retain a sense of humor. “We aren’t road signs, you need to respect us?” Right on, ladies.

Of course, a single march isn’t going to fix things, and the rapists and rape apologists were unimpressed.

Taxi associations condemned last month’s incident, which saw several other women coming forward with similar harrowing stories, but twenty-something taxi driver Thulani Nhlapho on Tuesday summed up one male view.

“If you are wearing a miniskirt, you give the impression you want to be raped,” Nhlapho added.

“You respect yourself when you wear a longer skirt. We respect women who respect themselves.”

Edwin Ndlovu, 29, was among those regarded the procession with great amusement.

“We laugh because they are naked,” said the car guard. “As a person you have to control your feelings. It is difficult when women are naked. That’s how some men end up raping women.”

Popular radio personality Redi Direko, herself abused in a taxi as a teenager, rejects such statements with contempt.

“We have babies who get raped, grandmothers who get raped. When I was assaulted, I was 13 and wearing a school uniform.”

Direko said it was disturbingly common for women to have their breasts and buttocks fondled on taxis.

“There is a lot of patriarchy. The expression of male sexuality is often violent, women have no negotiating power.”

About 50,000 rapes are reported every year in South Africa, which has one of the world’s highest violent crime rates.

But activists say the numbers are hugely under-reported, and could amount to a million a year.

It’s depressing, of course, but we also can’t expect any different. The point is that women are organizing, they’re making themselves seen and heard, and they are refusing to be shamed into silence. I find the woman whose assault was a catalyst for this event to be a hero in her own right; as I said above, women have a good reason to keep their mouths shut in a rape culture, and South Africa’s is sadly one of the worst.

Clearly, the taxi drivers who seem to rape with impunity (along with other men) are not going to have their minds changed first. In order to eradicate a rape culture, I believe that you first have to get your message through to the mainstream, so that the general population stops tolerating rape apologism. Once we fail to condone rape apologism, we will also fail to condone rape. This is the tactic behind both Cunningham’s actions and the South African who organized and participated in this march.

It gives me hope. I wish them all of the luck in the world, and hope that the idea spreads.

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{ 14 comments }

1 Moody March 7, 2008 at 4:04 pm

Loved the title of this blog. It really gives you hope seeing more and more people organizing and making a difference.

2 Feminist Avatar March 7, 2008 at 8:46 pm

Cunningham’s ‘vulnerable’ comment was in reference to the legal strategy. The defence tried to bring in the victim’s clothing and previous sexual history to prove that despite being legally underage she was not a ‘child’ and so his client should not be as severely punished as somebody who had raped a child. Raping a ‘vulnerable’ person (such as a child, some who is incapacitated through alcohol or otherwise, or is severely disabled) is considered more punishable than raping someone with a better chance of defending themselves.

Cunningham’s point was that her previous sexual history was absolutely not relevant as she was a child and there should be no debate on this issue (in other words her dressing older or having sex did not remove her form the chold category). I actually think this strategy worked on the judge though as the rapist got three years SUSPENDED sentence and community service. I think it is important to note that this is not a statutory rape case, although that is what the defence tried to argue. She was drunk and unconscious and awoke to being sexual assaulted. This would have been rape regardless of the age of the victim.

3 Cara March 7, 2008 at 9:29 pm

I was referring to my personal thinking that a woman who is drunk and passed out in a stranger’s house and wakes up to find him raping her is still pretty vulnerable under those particular circumstances, no matter what her age. But I wasn’t aware that “vulnerable” was a legal term.

4 Feminist Avatar March 8, 2008 at 1:05 pm

Happy International Women’s Day, Cara.

5 Nathan March 8, 2008 at 4:04 pm

Thank you for this post, and Happy International Women’s Day to everyone reading! Let me give a shout-out to the V-Day project’s 10th Anniversary, putting an end to violence against women with “The Vagina Monologues” and “Until the Violence Stops,” a documentary on the anniversary.

In relation to this topic, however, I wanted to share with you a story I came upon a couple of weeks ago that describes Democratic presidental candidate Senator Hillary Clinton using this exact tactic when defending an accused rapist who allegedly attacked a 12-year-old. Here’s the article from the Long Island publication, Newsday:

http://www.newsday.com/news/politics/ny-usark245589997feb24,0,718575.story

Sadly, the story is touted as a positive example of how Clinton handles crisis.

Food for thought.
Peace.

6 Cara March 8, 2008 at 4:13 pm

Nathan, I read that story last week. It made me incredibly sad. It still does, and I wish that it wasn’t true.

7 Kristen March 8, 2008 at 6:06 pm

This is wonderful news on both counts. If only we could re-frame rape legally the world might actually change.

At 18 I picked a friend off the dorm bathroom floor. Earlier that day she had been at the preliminary hearing for her rape case with her mother and father by her side. The defense attorney said loudly to the prosecutor that they were planning to argue that this rape was really consensual because she had a history of exchanging sex for drugs. (She had slept with a boyfriend with whom she smoked pot.) She went back to the dorm and swallowed all the pills her psychiatrist had prescribed. Thankfully she survived. Unfortunately, her case was dropped since her suicide attempt made her an unstable witness. So her rapist walked, because a defense attorney was allowed to surreptitiously threaten the victim. And that threat carried weight. (The prosecutor even admitted the defense might have been able to get that in at trial.)

It will always be this way until we place the burden of proving affirmative consent in this case on the defendant if he raises consent as an affirmative defense.

Or until all lawyers get together and say that they will not participate in this sexist bullying. But of course I deserve disbarment for that suggestion. :)

8 Cara March 8, 2008 at 6:29 pm

What a horrifying story, Kristen. The worst part of all, of course, is that your friend is hardly the only one who has a story like that. Thank you for sharing. I think that a lot of people need to hear that kind of shocking story to actually reconsider what they’re supporting when they support the right for defense attorneys to blame rape on victims through discussions of their sexual histories and clothing choices. With the exception of self-defense defenses for murder cases, rape is the only crime I can think of where attorneys don’t try to prove that a.) their client did not commit the crime in question or that b.) what they did was not actually a crime (though yeah, sometimes they do), but instead argue that c.) if their client did do the crime, and they’re not saying they did!, the victim is the one to blame.

9 Feminist Avatar March 8, 2008 at 9:14 pm

In Scotland, we are trying to rewrite the rape statutes at present. One of the posited changes is that men will have to demonstrate consent in rape trials. This is not the same as legally proving consent, but it is intended to transform rape cases from the victim having to argue she said no, to the rapist having to argue that he asked and was told yes. I don’t think it is the most workable legislation in a ‘he said, she said’ type of situation, but it will mean that men can no longer argue she was dressed sexily or was flirting with me and argue that this meant ‘yes’. It is pushing towards a more explicit form of consent and, for the first time in Scotland, the law will define what it means to consent, which the new legislation seems to say means women saying ‘yes’, rather than not saying ‘no’.

10 Moz March 8, 2008 at 10:05 pm

Thanks for the post – I just found it by StumbleUpon.

Can I ask a question? If I shouldn’t ask it here, redirection to somewhere more suitable would be much appreciated. I’m male, and while I try to learn what I can about feminism I can’t pretend to know much.

I was involved in a conversation about rape this evening with three friends (two men, one woman). They argued that more people would be convicted if laws were changed to recognise a range of categories of severity of rape, as for other crimes like murder and assault.

What do you make of this? I wasn’t a big fan of the idea, but would appreciate another point of view.

11 Cara March 9, 2008 at 12:35 pm

Moz,

It’s not hugely relevant to this thread, but I do think that it’s an interesting question. I haven’t spent a lot of time weighing different arguments, but my initial thoughts are these:

Firstly, I think that there are many more pressing problems with rape law. Like the fact that so many laws are outdated that they might not even include spousal rape, they may say that only men can be rapists and only women can be victims (it’s quite uncommon for a woman to rape a man, but sadly common for a man to rape another man and increasingly common for a woman to rape another woman), may not take anal and oral rape into account, may allow intoxication of either party as a defense, or as above, allow states of dress to be a defense or sexual history admissible in court. Another big problem is that almost all U.S. sexual assault laws are on a state level. There are few clear national standards for states to work off of, so we’ve got a patchwork thing going on, currently.

Secondly, some if not most states already seem to do this. (I was unable to find a comprehensive resource listing rape laws from all over the U.S. Anyone know of something like this?) And anecdotal evidence confirms my first suspicion that there are more pressing issues. Take this case where a man was acquitted of fourth-degree criminal sexual conduct and attempted third-degree criminal sexual conduct, even though he admitted to what he had done. Fourth-degree and third-degree “criminal sexual conduct” is pretty far down on the hierarchy of heinousness, but this didn’t convince a jury to convict him. The problem wasn’t that the charges were too severe — the problem was that the law was sufficiently vague, the judge was sufficiently sympathetic to the accused and the jury was sufficiently indoctrinated with rape myths that it didn’t do a damn bit of good. Of course, this is only once case. But the fact remains that sexual assault convictions are rare and difficult to get. If there’s evidence out there that defining severity of assault increases convictions, I’d love to see it, but I still have yet to come across it.

Thirdly, I feel like any practical enforcement of such a system would tend to feed into rape apologism. The first question is how to define the “degrees.” There’s the option of premeditation, as the degrees for murders are largely based on. I think that premeditation is difficult to prove in the best of cases, and with rape it would be even harder. Further, if we then define the lowest tier as “spontaneous,” it could feed into the idea that rape is actually about a man being unable to control his sexual urges, rather than being unwilling to stop himself from committing a morally-disgusting act of violence. Doesn’t sound like a good idea to me.

The next idea would be based on the sexual crime itself. But there would be a lot of debate about which crimes fall into what category — for example, oral rape would probably be an issue of strong contention. There’s also the fact that there are going to be instances where an act of oral rape would be much more violent than vaginal or anal rape, so it wouldn’t be a fair measure by which to bring about justice.

Which leads us to the last option, which would be level of force/violence. This seems to me to be the most workable — and I don’t disagree with the argument that a man who threatens a woman with a gun or beats/stabs a woman before raping her deserves a harsher sentence than one who does not. After that point, though, you get into a far more subjective level, and of course the rape is violence in itself. It also seems to me that we don’t really need to define different degrees of sexual assault to do this. That’s where sentencing comes in, and why a man stealing a purse while threatening the woman with a gun is likely to get a harsher sentence than one who just snatches it, or why someone who stabs a person 20 times is likely to get a harsher sentence for murder than someone who uses a single bullet.

I’m interested in other thoughts on this one, though.

Also, Moz, if you’re interested in learning more about feminism/feminist issues, I highly recommend the Feminism 101 Blog. They are still working on a comprehensive sexual assault FAQ, but they do have a slew of other great resources that you might be interested in.

12 Moz March 9, 2008 at 1:19 pm

Thanks, Cara – I knew my question wasn’t directly relevant, but thought it would be worth a try. Most of my feminism these days comes from blog-reading, so asking a blogger seemed like the logical thing to do.

My feeling was much the same as your point 3 – offering a lower level of punishment for, say, sex without consent while both parties are drunk or in a relationship (both suggested yesterday), on the grounds that the man might honestly misinterpret the woman’s ‘no’, seems to undermine feminist attempts to change cultural attitudes to rape.

I’ll check out that blog you mentioned – thanks for the tip.

13 Kristen March 10, 2008 at 1:32 am

Cara,

I disagree with the idea of different levels of criminality depending on violence. Its a small pet peeve that violent felonies are subsumed by a charge of rape.

If I were designing a rape statute, each act of non consensual sex (manual, oral, anal, vaginal) would be a count of rape and each act of violence – assault, threats, etc – used to perpetrate the rape would be a separate count REQUIRING consecutive sentences.

So if someone date rapes a person using threats to keep the victim there, the rapist would be charged with rape, kidnapping, and terroristic threatening.

If someone rapes another at knife point and then stabs them repeatedly, the rapist would be charged with rape, kidnapping, terroristic threatening, attempted murder/assault with a deadly weapon.

14 Kylie March 28, 2008 at 4:54 am

I’m so pleased to hear about this ruling. I’ve been devastated all day by this ruling here in Australia which sends the most horrifying message to all women and elderly people in our country, not to mention the message to abusers!
http://www.news.com.au/heraldsun/story/0,21985,23445133-661,00.html
Sadly it’s still very much a boy’s club here, we have so far to go!

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