ATS2469 Week 4 lecture PDF

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ATS2469 Week 4: Secondary Victimisation- Rape trials and communicative consent America uses confirmative consent ⅕ women experience sexual assault Terminology victims? Survivors? Complainants?  Complainant- someone who reports sexual violence… not victim.  derives from complain, problematic  preconceived notions  in court is treated as a witness  survivor is the preferred term  challenging true victim and vindictive lying woman Secondary Victimisation  Secondary victimisation refers generally to the re-victimisation of victims within – and by – the criminal justice system (at least in so far as we are concerned in this context – it can also occur in dealings with family, friends, medical personnel etc.)  The process by which victims feel blamed for their victimisation by the criminal justice system, or experience negative responses as a result of primary victimisation (for example, Parsons and Bergin (2010))  Sexual Violence is an important case study to examine this issue – it is arguably most prevalent in cases of this type of victimisation  In terms of the CJS it starts with the first interaction a victim has with the system – the police. Today we are focusing on the court system – but it is not confined to the courts!! Rape victims:  medical examination- invasive  giving evidence. State v accused. Victim is a witness  expectation to prove victimisation  architecture. E.g. Melbourne courts, one coffee van, victims and perpetrators bound to run into each other  discourages reporting of victims  miscarriages of justice  increase of self-blame Context:  half of trials in county court  gendered crime  racialised issue  people don’t identify their experience as rape, even though they have been victimised

Secondary victimisation and rape victims  Can occur through formal and informal mechanisms  Formal criminal justice processes – medical examinations, giving evidence (remember the role of the victim is as a ‘witness’ – they don’t get to share their experience freely – it is not a therapeutic setting), the expectation to ‘prove’ victimisation  ‘Judicial rape’ — ‘a spectacle of degradation visited upon the victim rather than the offender’ (Lees, 1997, p.73).  Confronting the perpetrator, having to remember and recall details of the crime, and facing witnesses to the crime can all trigger secondary victimisation (Rothbaum et al., 1992)  Factors such as aggressive questioning about personal and traumatic events, victim blaming, and questioning their credibility or reliability (Herman, 2003)  Informal criminal justice failures – architecture, treatment by legal personnel  Discourages reporting, significant emotional and psychological impacts on victims, miscarriages of justice, damaged self-esteem and increase in self-blame (think too about the consequences of this) Women’s victimisation  Sexual offences make up approx. 50% of the trials heard in the County Court of Victoria (DoJ, 2015)  Rape is a specifically gendered crime – 1 in 5 Australian women victimised. Men are also victims of sexual violence, 1 in 22 Australian men victimised. (see for example ANROWS, 2015)  High rates of sexual violence against LGBTIQ Australians – although data is limited.  About 1 in 6 reports their experience to the police (CASA, 2017)

 Indigenous women are overrepresented as victims of interpersonal violence  Most often occurs in the home Report: • 1.6% of students were sexually assaulted in a university setting including travel to and from campus at least once between 2015-2016 • Bi-sexual students more likely than heterosexual or gay, lesbian, homosexual students to have been sexually assaulted at uni in the same period • Majority perpetrators known to the victim and often from the same university • Many more students experience other forms of sexual harassment as well as homophobic and transphobic hate-speech and abuse (see also Roffee and Waling, 2017) Role of rape myths  Gavey (2005) ‘cultural scaffolding of rape’  Burt (1980; 217) first defined rape myths as ‘prejudicial, stereotypes or false beliefs about rape, rape victims, and rapists’.  Lonsway and Fitzgerald (1994; 134) furthered this to include ‘attitudes and beliefs that are generally false but are widely and persistently held, and that serve to deny and justify male sexual aggression against women’.  Powell et al. (2013; 460) argue that rape myths ‘are derived from sex role stereotyping, adversarial sexual beliefs, sexual conservatism and the acceptance of interpersonal violence’  A 2014 VicHealth survey found that 1 in 6 respondents believed that when a woman ‘says no’ she really means yes, and 43% of respondents believed that rape occurs because men cannot control their urge for sex.  Keep this in mind as we explore the legislation around rape and consent      

Ideal victim justfies male sexual aggression inform the way we understand normal sexual practice limited, narrow concepts of sex. Limits our understanding of sex, and thus rape seduction narratives are problematic language around the concept of virginity. Women v men is different?

Historical response to sexual violence  Rape as a crime against the ‘will’ of the victim  Unwillingness must be evidenced through active resistance of the victim  Perpetrator must have used force (therefore expectations of injury, even death)  Protected men’s property/value interests in women, regulation of women’s sexuality, enforcement of white racial supremacy  The law has not always existed to protect women – Morgan principle (1976 UKHL) is a good example of this – honest belief in consent negated legal responsibility – regardless of how unreasonable that belief was.  This made it easy to blame women for their victimisation and (continue) the focus on their behaviour  Victim-blaming – “A jury’s concept of ‘consent’ is based almost exclusively on … its judgment of the victim’s ‘moral character’” (Brownmiller, 1975)  Remember the legacy of problematic law and its impact on future reform At present, most crime victims decline to get involved in the legal system, apparently preferring to suffer the injustice rather than compromise their family or community ties, their privacy, their safety, or their mental health … Among rape victims, for example, in spite of legal reforms designed to mitigate the most flagrant forms of institutional bias, still only a small minority choose to report the crime. (Herman, 2003, p. 161)  White racial supremacy-enforcement of rape.  Not about protecting women at all  ‘Will’ did not apply to people who were unconscious

Legal reform and social change (?)  Considerable reform attempts in Victoria in the area of sexual offences in response to feminist advocacy and the problems with historical approaches – particularly in the area of sexual consent.  ‘No Means No’ or ‘Yes Means Yes’?

Communicative consent  Consent is:

o Ongoing o Expressed through actions or words o Freely given o Subjectively held by the victim  In contrast to historical definitions of consent: o Assumed o Non-consent actively expressed In Vic law  Crimes Act 1958 (Vic)  ‘Free agreement’ (Section 34C)  Includes consent-negating scenarios and circumstances where the person is not consenting  Fear or force  Unlawfully detained  Asleep  Unconscious  So intoxicated that they are unable to give consent  Does not say or do anything to indicate consent Complicated in victoria

Law reform isn’t neutral-what about the political climate  In your reading this week Lise Gotell explores “how the legal elaboration of affirmative consent in Canadian law might be seen as a specific expression of neoliberal governmentality, forging new normative sexual subjects who interact within a transactional sexual economy.”  Vulnerability reconstructed as responsibility  We can see these same shifts in the Australian context  Rape-risk prevention - onus on women to ‘protect’ themselves from victimisation – avoid ‘flirting’, protect their drinks, never walk alone at night  These are PROBLEMATIC because:  They do not prevent rape. They rely on rape myths about ‘real rape’.  Blame women  Are social control – women need to constantly negotiate their access to public space in ways that men do not. (cough patriarchy cough).    

Law reform is highly political Myth Canadian law is good comparison Rape-risk prevention → protect yourself. E.g. going to the bathroom in groups, protect your drink, avoid flirting. Relies of rape myths

Communicative consent in court  We can see through these examples that problematic questioning has continued. Your task now in tutorials is to consider how secondary victimisation continues despite legislative reform.  ‘There is no evidence of any physical attempt by her to stop this activity. There was no resistance. She doesn’t yell out’.  “This is not [a] situation where a woman may wake up, realise that her lover was having sex with her and then consented, if you like, post the act, or continuing with the act”.  Defence: But you didn’t scream? Victim: No, I froze. Defence: Would you say now that freezing in those circumstances was an irrational thing to do?...