Convery 222
Type
Essay
Category
Activism
Sexual assault
The law

Get your hands off my sister

In late November last year, adult film star Stoya published two posts to her Twitter account alleging that fellow porn actor and former boyfriend James Deen had raped her.

@Stoya: That thing where you log in to the internet for a second and see people idolizing the guy who raped you as a feminist. That thing sucks. 29 Nov 2015, 6:29 AM

@Stoya: James Deen held me down and fucked me while I said no, stop, used my safeword. I just can’t nod and smile when people bring him up anymore. 29 Nov 2015, 6:42 AM

Stoya’s revelations, succinct as they were, produced a swift and explosive response from the public and the media. Her tweets were shared at lightning speed; #IStandWithStoya and #SolidarityWithStoya became globally trending topics. In the gardens of the fringe and mainstream media, a thousand thinkpieces bloomed. The story made the news sections of The Guardian, The Daily Mail and Huffington Post, and was featured on innumerable feminist and comment websites. Salon published at least seven separate comment pieces in the fortnight following the revelations, while The Daily Beast had more or less rolling coverage.

Until that point, Deen had been something of an anomaly in pornography. His blue eyes and boy-next-door looks, coupled with an abundance of personal charm, meant that he not only stood out, but also appealed to porn’s much maligned female audience. He had also cultivated something of a feminist brand – a strange phenomenon given he had claimed in multiple interviews that he was ‘absolutely not’ a feminist. This reputation likely had less to do with Deen’s own politics and more to do with the female fans who made him a household name, as well as the company he chose to keep in his working and private life. But Deen’s rejection of feminism certainly didn’t hinder his opportunities. He was profiled in GQ. He wrote a sex advice column for women’s site The Frisky. His cultural capital transitioned some way into Hollywood, where he was cast opposite Lindsay Lohan in the (critically panned) 2013 Bret Easton Ellis-penned ‘erotic thriller’ The Canyons.

Yet Stoya’s tweets functioned like a pressure-release valve. Whispers, rumours and off-set warnings that had been circulating in the industry suddenly became real. In the resulting media frenzy, up to nine other women in the porn industry came forward and claimed that they, too, were victims of Deen. Some of them were ex-girlfriends; others were colleagues. Each revelation reset the cycle of commentary.

In the wake of the allegations, industry bodies started distancing themselves. Studios severed ties; Deen resigned as chair of the Adult Performer Advocacy Committee; Amelia McDonell-Parry, editor of The Frisky, cancelled his sex advice column. ‘The court of public opinion is not a court of law,’ McDonell-Parry wrote. ‘I don’t need Stoya or any woman to “prove” that she has been raped for me to believe her. Women who come out as rape victims are far, far, far too often not believed.’

Feminist writer Laurie Penny took a similar stance in Time. ‘I believe Stoya,’ she wrote. ‘The response … is the crest on a tidal wave of women’s truth washing away the detritus of lies about sex and violence, about which lives matter and who is to be believed.’

So far, no formal charges have been laid against Deen; the saga has played out entirely through the media. Indeed, it was telling that when Deen finally spoke about the allegations against him, it was a textbook public relations counterstrike. He agreed to an exclusive interview with The Daily Beast, on the condition that the interview be published unedited. The interview was done by journalist and former porn performer Aurora Snow, with whom Deen had a prior working relationship. ‘Personally speaking,’ Snow made a point of saying, ‘you’ve always been very kind and professional to me on set. I was shocked by the allegations against you.’ Deen then proceeded to deny all the allegations, claiming they were either entirely fabricated or misrepresentations of real events. After a month’s hiatus, he started making movies again.

 

‘I believe women’ has become something of a feminist catchcry. It has developed as a response to frequent and institutionalised trivialisation of sexual assault. The suggestion that women are making it up or just ‘looking for attention’, combined with the high acquittal rate of sexual assault cases, has brought about a kind of activism centred on an unshakeable faith in women’s accusations of sexual assault and on the public articulation of this position. For frontline and crisis workers, whose imperative it is to provide shelter and protection for survivors, it is unthinkable to dismiss allegations. To do so can leave women without access to support services or recourse to justice. In some instances, particularly in cases of family violence, failing to respond to allegations can leave women vulnerable to repeated attack.

But ‘I believe women’ has also become the default feminist response to allegations of assault made, by and large, on the internet. It plays out – as this kind of rhetorical intervention often does – on social media, and more and more often in the comments pages of newspapers and magazines. But, by dint of its uncritical and unquestioning stance, this response also presents a huge problem for concepts of justice and due process, and for progressive activism more generally.

Early medieval rape law required a woman to prove a rape claim by raising hue and cry in the nearest town, seeking corroboration by showing ‘trustworthy men’ her ‘injury’ (such as torn clothing and blood) and repeating her claim in the exact same words to the coroner, court officials and numerous other administrators of justice. It was, in other words, deliberately prohibitive: an explicit attempt to punish women who claimed they had been raped by making the prospect of complaining more difficult and humiliating than putting up and shutting up.

These days, it seems scarcely less difficult. Catriona MacLennan, in an article for Overland last year, discussed at length the way the adversarial court systems in Australia and New Zealand – systems that pit one person against another and result in a ‘win’ or a ‘loss’, more like a duel than a holistic community-minded remedial space – are constructed in ways that protect the defendant and expose the victim. Given that only around 15 per cent of those offenders reported to police are charged and that these defendants, according to the Australian Bureau of Statistics, ‘are less likely … to plead guilty, more likely to go to trial and more likely to have an acquittal outcome’, it is not surprising that only 17 per cent of victims in Australia even bother reporting their experience to the police. (There are also very good reasons why sex workers in particular might not seek criminal justice in cases of sexual assault, many of which were articulated during the media frenzy following Stoya’s allegations. ‘When you’re an adult actress, especially in BDSM, and you go to a cop and say “Oh I’ve been raped by this guy after doing a scene”, they are not going to take you seriously,’ said Nicki Blue, one of Deen’s co-accusers.)

The high rate of estimated non-reporting, coupled with evidence suggesting extremely low rates of false reporting, informs much survivor advocacy, particularly responses to rape culture and victim blaming. For all this, however, there is a significant lack of academic consensus on what the rate of false reporting actually is. Men’s rights activists, for example, often quote a US-based 1994 study by EJ Kanin, that sets the false reporting rate at 41 per cent. But the standard of proof of falsity for this study required only that the complainant state, after taking a polygraph test, that the sexual assault did not occur – a procedure that has been roundly criticised (and, in some US states as well as Australia, legally prohibited) for its coercive potential. On the other end of the spectrum is a 2015 Australian meta-analysis study, led by QUT criminologist Claire Ferguson, that found an average confirmed false-reporting rate of only 5 per cent. However, researchers only included those studies that differentiated between an unsubstantiated report (where no evidence could be found to confirm it) and a report for which evidence proved falsity. Very, very few studies differentiated cases in such a way – the researchers could only find seven, internationally, that fit their criteria.

We have an instinctive hostility to the claim that women might lie about sexual assault for a very good reason: sexual assault has been routinely diminished, dismissed, degraded and disbelieved, even in cases of brutal and repeated attack. But if the standard of proof we require to accept that an allegation is false is that it is proven false – and it would seem to me to be utterly irresponsible to call a sexual assault allegation false under any other circumstances – then surely we should have the same standard for determining whether a complaint is true? To argue otherwise is to hold sexual assault cases apart from other kinds of crimes and to advocate for a different standard of jurisprudence when dealing with them. Which raises the question: does an effective political strategy against sexual violence require the presumption of truth in all allegations?

 

An unfortunate accompaniment to calls for the justice system to take sexual violence more seriously is the tendency of activists on both sides of politics to advocate for tougher bail sanctions, harsher parole conditions and longer sentences. This was the substance of much of the argument around Adrian Bayley, who raped and murdered Jill Meagher in 2012, a case that led to a massive outpouring of grief and anger (particularly in Melbourne, where the murder occurred). For example, apparent leniency in sentencing for Bayley’s long string of prior convictions for violent rape – often of sex workers – was posited by feminist writer Clementine Ford in March 2015 as a damning indictment of the justice system’s handling of violent offenders:

How could a known risk, someone the sentencing judge in the Meagher rape and murder trial called ‘a recidivist violent sexual offender who has had little compunction about sexual offending when the mood takes [him], or about threatening and inflicting violence as part of the process’, be given the kind of freedom that enables him to traumatise and brutalise countless women? … The answer surely lies in the approach the legal system takes towards sex crimes, and particularly sex crimes perpetrated against certain kinds of women.

Less than a month after teenager Masa Vukotic was murdered in a Doncaster park in a random attack, community group Enough is Enough staged a rally in Melbourne, at which former shock jock Derryn Hinch and former politician Phil Cleary called for harsher responses to violent offenders, including tightened bail and parole conditions, and victims of crime advocate Noel McNamara went so far as to argue for the reintroduction of the death penalty (which has not been seriously discussed since its abolition in 1967). A vocal advocate of a sex-offenders register, Hinch has long called for tougher sentencing. His public statements on the matter have had significant consequences, both for himself and for others, though he exhibits little care for the legal implications of his actions: Hinch has been convicted three times for contempt of court, most recently in 2013, after which he served fifty days in prison for revealing details about Bayley’s prior convictions. His newly created Justice Party plans to field candidates in the 2016 federal election on a ‘tough on crime’ platform. The party’s website notes Vukotic and Meagher, among other victims of violence, as people whose lives could have been saved had the iron fist of the state smashed down harder upon their would-be killers.

Yet there is no evidence that harsher punishments deter criminal behaviour or reduce recidivism. To cite just one example: in 1999, a meta-analysis of fifty studies relating to over 300,000 offenders in the Canadian criminal justice system concluded that incarceration and immediate sanctions (such as intensive surveillance and electronic tagging) – punishments popularly advocated for by deterrence proponents – do little to reduce rates of violent crime. The study noted that ‘no coherent empirical rationale has been posited to support the use of these strategies’.

But even more important … is the paramount fact that there is absolutely no cogent theoretical or empirical rationale for criminal justice sanctions to suppress criminal behaviour in the first place … At best, most criminal justice sanctions are threats (e.g. ‘do something unspecified sometime in the future and something may happen’). To those who believe that criminal justice sanctions in general or threats in particular are effective punishers or negative reinforcers, we advise they consult the relevant behaviour modification literature or any experimental learning text for supportive evidence … There is none.

Prisons do not prevent crime from occurring; they merely shift its location. The statistics for sexual assaults in prisons – which suffer from underreporting because of massive social stigma – are horrific. In his groundbreaking Australian study published in 1998, David Heilpern found that one in four men between the ages of eighteen and twenty-five are victims of sexual violence during incarceration. A 2009 Western Australian study found corresponding rates across the general male prison population. In 2012, the United States Justice Department – after significant public pressure – finally estimated that around 210,000 inmates in the US prison system are sexually abused, often repeatedly, every year. Victims are most likely to be first-time, young and queer offenders – those most likely to suffer the effects of mandatory minimum sentencing and harsher parole and bail laws. Yet these instances of sexual violence rarely factor into anti-rape campaigns, despite the rates being comparable to those experienced by women in general (an estimated one in five women in Australia will experience sexual assault). Indeed, such acts of violence are more or less culturally accepted, often as a perverse kind of ‘justice’.

Laws of imprisonment disproportionately affect marginalised peoples. Of the 1.5 million people in jail in the United States in 2014, 37 per cent were African American and 22 per cent Hispanic. In Australia in the same year, 27 per cent of the 33,791 prisoners in detention at the time (a ten-year high that is still climbing) were Indigenous. In the Northern Territory that year, Indigenous people made up 86 per cent of adult and 96 per cent of juvenile detainees. This is not to mention the extraordinary number of non-Anglo asylum seekers Australia has imprisoned in appalling conditions in offshore detention centres.

Historical and contemporary examples also show how the politics of state repression have intersected with the politics of sexual violence, and how presumptions of truth – specifically regarding the testimony of white women – have been used as leverage for horrific acts against marginalised peoples. In the Jim Crow south of the United States, accusations of rape were frequently used to justify state-driven and state-sanctioned violence against black people. In 1892, journalist Ida B Wells published a pamphlet, Southern Horrors: Lynch Law in All Its Phases, detailing incident after incident in which accusations of rape resulted in wrongful imprisonment, horrific violence and innumerable lynchings. Many of these accusations were subsequently revealed to be cover stories through which respectable white women hid their consensual interactions with black men – relationships that anti-miscegenation laws made illegal and prevailing social codes considered abominable. ‘Hundreds of such cases might be cited,’ Wells wrote. The public response when a black woman was assaulted, however, was in stark contrast:

In [Nashville], last May, a white man outraged an Afro-American girl in a drug store. He was arrested, and released on bail at the trial. It was rumored that five hundred Afro-Americans had organized to lynch him. Two hundred and fifty white citizens armed themselves with Winchesters and guarded him. A cannon was placed in front of his home, and the Buchanan Rifles (State Militia) ordered to the scene for his protection. The Afro-American mob did not materialise.

‘Hence there is a growing demand,’ Wells wrote, ‘among Afro-Americans that the guilt or innocence of parties accused of rape be fully established.’

More recently, we might look to Cologne, Germany, where approximately 200 complaints of sexual assault were made against ‘up to 1000 men of Arab or North African appearance’ in the wake of New Year’s Eve celebrations. The reports had not even been fully investigated before they were used as justification by Angela Merkel’s ruling Christian Democratic Union party for harsher criminal sanctions against refugees, including returning them to their countries of origin if they broke the law. There were also calls from within the government for tighter border controls. By February it had emerged that only three of the fifty-eight suspects arrested in connection with the attacks were refugees.

Then there is Australia. In February, the Sydney Morning Herald ran a front-page story by Paul Sheehan that detailed an alleged gang rape and attempted murder of a Sydney nurse by ‘Arabic’ men. The article was retracted four days later when it emerged that the anonymous complainant’s story was full of inconsistencies and unverifiable claims. By that time it had also became apparent that the story had strong links to nationalist anti-Muslim group Reclaim Australia.

These examples are complex; the history of race relations in these countries cannot be removed from their social and political contexts. What they illustrate, however, is how allegations of sexual violence are vulnerable to violent exploitation of their own – depending on who makes them, when they are made and how they are made – because there is a politics to the publicity of sexual assault allegations. How we talk about them matters. This politics goes beyond simply raising awareness or reducing stigma: it is heavily invested in the dynamics of race relations, colonialism, capitalism, and state and corporate power, and it raises serious questions about what ‘justice’ actually means.

 

In January 2016, in the aftermath of David Bowie’s death, an enormous argument erupted on the status of a Facebook friend of mine. It centred on the circulation of articles relating to two incidents: the first involved an accusation of sexual assault by a woman who had been in Bowie’s hotel room one night in 1987; the second was the story of Lori Mattix, one of the famous ‘baby groupies’ of LA’s rock scene. In an interview with Thrillist in November 2015, Mattix claimed that she had lost her virginity to Bowie at the age of fifteen.

It was, in many ways, illustrative of the social media response to upsetting news: an initial outpouring of grief that is then called into question, usually by problematising the public narrative of the deceased person’s life – in this case, by circulating allegations about sexual assault and statutory rape. While obituaries piled up, the facts of Bowie’s death – even the simple question of what kind of cancer he had been suffering from – seemed difficult to ascertain. Opinions were everywhere, facts not so much. In both cases, the question of what might actually constitute justice in these circumstances seemed secondary to the currency resulting from sharing the allegations themselves. In the former incident, Bowie was acquitted by the court for lack of evidence; in the latter, Mattix obstinately refused to identify as a victim – neither at the time nor decades later – but remembered her experiences ‘very fondly’. The law, then and now, would see her as the victim of statutory rape, but she was having none of it.

Sexual violence can occur subtly, even within the confines of what might be an otherwise respectful or loving relationship. It can occur at home or at school or at work. It can occur between friends, partners, family members, colleagues and acquaintances. The stranger-danger narrative is a pernicious one: in the overwhelming majority of cases, violence is committed by someone known to the victim.

When asked what they want from the justice system, many victims of sexual assault say they don’t just want retribution – sometimes they don’t want this at all. Instead, they want acknowledgement, by the community as well as the perpetrator, of the harm suffered; they want to be heard, and to have some control over the process by which they tell their story; they want reassurance that the violence will stop. The adversarial justice system rarely provides these things. But there are other models that might. For example, restorative justice, a model first introduced in New Zealand for juvenile offenders, is advocated for by many legal scholars and practitioners. This is because – by dint of being non-adversarial – it gives a voice to victims, rather than cross-examining them. The primary objective of restorative justice is to redress harm in a controlled and discursive environment, while emphasising offender accountability. The model provides a space in which more complicated scenarios, particularly those involving offenders known to the victim, can be addressed productively, and it is flexible enough to accommodate different cultures, ages and abilities. According to the NZ Ministry of Justice, ‘77 per cent of victims were satisfied with the overall experience of restorative justice; 74 per cent felt better after participating in the process; and 80 per cent would recommend restorative justice to other victims in a similar situation.’ Adopting a restorative justice model would not solve every problem, but it would be a step in the right direction. It would also provide many of the things feminists have been demanding of the legal system for years.

 

In late February, a protracted legal dispute between pop singer Kesha and Sony producer Lukasz ‘Dr Luke’ Gottwald became worldwide news when a judge ruled that Kesha was obliged to continue in her contractual arrangement with Sony despite her allegations that Gottwald had sexually assaulted her on multiple occasions. #FreeKesha trended; public figures spoke out in support of the singer; Taylor Swift reportedly donated US$250,000 to assist her legal campaign. But while this support is no doubt meaningful to Kesha herself, what does it really change? The allegations of assault are not themselves the subject of criminal charges; the case is a lawsuit to void a contract. The structures that put her at risk are still in place.

Incidents of sexual violence that have media currency are rarely representative of the vast majority of victims or abusers. Using the media as a vehicle to condemn one man at a time – men with public profiles, with power and influence, whose crimes create headlines and appeal to the voyeur in all of us – might give a handful of victims a sense of closure, but what does it actually change for all those women who don’t have access to that kind of support? For women of colour who have every reason not to trust the police; for women whose financial security or residency status depends on them not making waves; for people whose livelihoods are built on precarious work and who understand that putting one foot wrong could easily result in being blackballed by an entire industry? Perhaps what is an appropriate personal response – to offer trust, comfort and faith in the story of a friend in trouble – does not necessarily translate to an effective political strategy.

It seems to me that the things we need to be fighting for are less about punishment and more about (to use that tired old word) empowerment. Rape is, after all, less about sex than it is about power. And fighting for empowerment means fighting for things like adequate single parent payments. Like welfare and public housing. Like strong unions with a focus on workplace safety, job security and rigorous standards against sexual harassment, to support the victims of workplace harassment or violence and to ensure proper protocols are in place to investigate, monitor and issue sanctions. Indeed, one might argue that in the case of Kesha, and even in the case of Stoya and Deen, unionism and strong industry-wide sexual harassment policies might have made a huge difference for those performers whose workplaces also happened to be the site of their alleged assaults. It also means recognising that a world without sexual violence will not be achieved through the expansion of the prison industrial complex. And that means fighting for a justice system that is built around true rehabilitation and accountability, that is focused on the goal of effective community reintegration. What would such a system look like? There are many people trying to tell us. We should listen.

The fact that this is a difficult problem does not mandate silence. It does not mean we should stop talking about sexual assault. It does not mean we can or should do nothing. On the contrary, it means that we should be interrogating our political strategies ever more closely, being more creative about our responses to violence, and holding our communities to a higher standard.

 

Editor’s note: An earlier version of this article suggested that Phil Cleary called for the reintroduction of the death penalty at the 2015 Enough is Enough rally. This is not the case and the essay was amended to reflect that on 19 July 2016.

 


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Stephanie Convery is the deputy culture editor of Guardian Australia and the former deputy editor of Overland. On Twitter, she is @gingerandhoney.

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