It takes a tsunami to dismantle the roots of entitlement.
The overwhelming number of men who commit rape escape justice. This article offers a new front in the fight against rape, with a single suggestion that could completely shift the current impunity for men who rape women.
Switch the legal requirement for women to prove they did not consent to men to prove they did.
Here is a quick run-through of the suggestion.
A Question of Rape
Before I start, let me affirm that our current legal system is far better than no legal system at all. But do not let that justify complacency to address any of its many failures. This clarification precedes a fundamental question of justice. It is driven by two golden principles. An accused person is innocent until proven guilty and an accuser will be fairly heard. Both are sacrosanct. The question in cases of rape is how is justice served where one thwarts the other?
The contention is that whilst the principles are unassailable, current practice delivers one principle at the expense of the other.
The challenge with the concept of innocent until proven guilty is that, almost by definition, it denies justice for legal wrongs for which evidence is hard to come by.
Presumptions of Evidence
Rape is not the only instance. Violence and murder frequently take place outside the public gaze. In those cases, the system of justice takes a creative attitude towards a variety of forms of evidence. Security systems deter or record fights. Microscopic evidence gathered from a breathtakingly labour intensive investigation can be enough to sway a murder case.
When it comes to theft, we are no less inventive. We make the presumption that an accuser of theft did not give permission of the person they accuse to take those goods. Whilst this is not a presumption of guilt without evidence, it does fall on the accused to overturn the presumption. This is why no one asks suspected burglary victims to provide evidence that they willingly consented to their goods being taken. We make the presumption that the accuser did not invite the burglar into their house. We do not presume culpability if the houses they live in are attractive or the cars they drive are appealing. The accuser does not have to demonstrate they are not complicit in their theft. It is up to the accused to explain why there were in someone else's house or car at the time of the theft. Even Judge Judy adopts some degree of basic presumption in making a judgement over whether money transferred between family or friends was a loan, which is repayable, or a gift, which is not.
Institutional Miscarriage of Justice
In theft cases, judges take account of probability where external evidence is hard to come by. Yet in rape cases, they do not. The golden principle of innocent until proven guilty is interpreted differently.
This goes some way to explain why, in the UK, nearly 99% of reported cases of rape are rejected or acquitted. Further, it is estimated that nearly 80% of rapes are not reported in the first place. Why would a woman report rape when her rapist is close to certain to be unpunished?
I am not proposing that we junk the fundamental principle of justice that protects someone who may be unfairly accused. I am suggesting that we need to afford the same standard of justice to an accuser who may be telling the truth. When it comes to rape, the legal system needs to mature its basic presumptions to create a more level playing field between defenders and accusers.
A New Legal Pathway
We need this new legal pathway for victims of rape to restore balance in the scales of justice. It would create a new expectation of men, who are by far the most substantial number of rapists, to become far more conscious and explicit in seeking consent from women, who are by far the most substantial number of victims, before engaging in sexual activities.
This suggestion may well require judges to be given a new set of criminal and non-criminal remedies in rape cases, especially where evidence is scant. This might include financial compensation, anger management or limits on social contacts with accusers or unsavoury friends. Judges need to start to apply the same techniques they use in non-rape cases to encourage a new culture that is more respectful and fairer towards women.
As a society, we need to stop blaming women for being the architects of their own rape and switch our scorn towards men who have sex without clear, obvious and freely given consent. Our legal system needs to reflect this emerging standard of behaviour. This single, legally supported expectation should have a significant impact on the culture and reality of rape.
A Movement for Change
Complaints about the blindness of our justice system to rape are not new. There have been effective and significant episodes in the past where public consciousness around rape was piqued. Occasional incidents have made waves but few have changed the status quo. The numbers speak for themselves. A toxic sense of male entitlement exposes the intoxicating power men have over women. And as we have seen so many times before, power does everything it can to sustain power.
We need a movement that demands a rebalance in the way evidence is applied in rape cases. We need coordination because what we know is able to dismantle an institution that manufactures power is a tsunami.
Let’s reach out and support a movement to build a tsunami of compassion, determination and justice. Men, let’s stand up as men to protect our wives, sisters, mothers and daughters from this violating scourge of toxic masculinity of which, like it or not, we are a part.