Before I begin, this post is about sexual violence, as the title implies.

Even if the current paradigm is shifting towards believing victims of sexual violence, which may or may not be true, it doesn’t alter the fact that justice for victims is rare. When I learned that Harvey Weinstein (whom I’d never even heard of prior to a few weeks ago) was being investigated by the NYPD I was stunned. I didn’t even consider that there would be legal ramifications, and obviously there still may not be. Though disgusted, I was satisfied that he is probably miserable due to losing his career and prestige. It’s not nearly enough but at least it’s something.

Some time back, Aeon had two thought-provoking articles on actually solving this persistent, endemic problem: one describes boosting conviction rates via better funding and systemic tinkering, the other pushes for radical legal changes.

Sandra Newman suggests that men may chose not to rape if they have reason to expect consequences. Currently, to say nothing of the last few millennia, there aren’t sufficient reasons to expect meaningful consequences. Sure accusations may accrue and cause discomfort or annoyance, maybe even prompting acquaintances to look askance at alleged perpetrators, but the minuscule chance of legal punishment is a huge reason victims don’t come forward:

[T]he overwhelming majority of the men assumed that they would never be punished. As one rapist said: ‘I knew I was doing wrong. But I also knew most women don’t report rape, and I didn’t think she would either.’ As Scully put it, her subjects saw rape as ‘a rewarding, low-risk act’.

It’s worth pausing here to underscore just what this implies. For a man to commit sexual assault, he must be a relatively, but not strikingly, antisocial person – enough that he isn’t too constrained by empathy for his victims. These seem like preconditions for any crime that has a victim; and indeed, the measured character traits of convicted rapists are identical to those of muggers and burglars. But a man who is capable of rape generally commits the crime only if he believes it will be excused by his peers, and that punishment can be evaded. There seem to be a remarkable number of men who meet these criteria; most of the college-age rapists studied were not only unafraid of punishment, but blissfully unaware that what they did was criminal. Looking at this general picture, Scully concluded that most rapes are the result of a ‘rape culture’ that tells men that, in many situations, raping women is not only normal behaviour, but completely safe.

This is an excellent explanation of what I think most would regard as intuitive (and, to me, is the most important part of the article). Thus, while victims may not explicate it in this manner, they are abundantly aware that consequences are rare. The posited solution is, as mentioned above, increasing conviction rates:

We can give police and prosecutors more funding for sexual-assault investigations, which are still woefully likely to be dropped in the early stages. We can monitor their efforts to ensure they follow best practices. We can fund the testing of forensic evidence, which is currently subject to long backlogs, and often simply lost or abandoned. Most of all, we can make it easier for victims to approach police; of all violent crimes, rape is the least likely to be reported. What we must not do is pretend it’s a different, easier problem, or act as if the solution for rape is a profound and unfathomable mystery.

Perhaps this is nothing earth-shattering to FtB readers, but the lack of meaningful consequences is crucial to understanding the magnitude of what we face as a society. The conclusion is okay, but I don’t think it goes far enough. This leads to the second article, by Christopher Wareham and James Vos. They argue persuasively that sexual violence accusations should not be subject to reasonable doubt as the standard of evidence.

While certain segments of the population (i.e. shitty men) are likely to empathize more with the accused, they tend to neglect the manifold ramifications of false acquittal. The authors make an elegant argument comparing the relative harm suffered by the different parties and why reasonable doubt is worthy of being reexamined within the context of sexual violence:

In considering whether or not a standard of proof is justified, we should consider not just the harm done to the one man wrongly convicted, but also the harm done by the 10 men wrongly released. This means that the justification for a standard of proof should also consider the accrued harms of false acquittal to the initial victim, to future victims of those criminals and to society.

In the case of sexual assault, these harms are extraordinarily severe. The victim suffers horrendously through the trial and is often badgered into reliving disturbing details of the incident. When the false acquittal is reached, all this is for nothing. Worse than this, she is falsely branded a liar, with all the psychological trauma this entails.

The harms of false acquittal to future victims and their loved ones amplify and extend this harm. Indeed it has been suggested that the trauma of sexual assault is greater than that experienced by war veterans.

Moreover, sexual offenders are likely to offend multiple times. In one study, rapists self-reported an average of 10 violent crimes, even before their ‘careers’ had ended. Consequently, to paraphrase Blackstone’s ratio with reference to sexual violence would mean saying it’s better to have the harm of 100 sexual assaults than the harm of one false conviction – a conclusion that is untenable.

The solution, they conclude, is the following:

As it stands, the legal system is weighted unfairly in favour of perpetrators of sexual assault. In addition to sending out a powerful expression of intolerance for gender violence, a lower standard of proof can decrease these harms by reducing the likelihood of false acquittal. Reasonable doubt is inappropriate, but what standard would do better?

Of the standards commonly employed in law, only the ‘preponderance of the evidence’ standard has been used on a consistent basis to decide cases of sexual violence, albeit in civil trials. Indeed, given the high probability of false acquittal, civil trials have increasingly become a first port of call for female victims of sexual violence in the US. Rather than calling for the absence of doubt, this standard judges a case on what the evidence leads one to believe most strongly. If a woman’s testimony provides a stronger reason to believe that she did not give consent, this should be enough.

In addition to increasing the likelihood of conviction, this could halt the accusation of greed levied against victims of sexual violence opting for civil court. Such apparent greed for monetary compensation is supposed evidence that the victim isn’t behaving in an appropriate manner. The stigma associated is a powerful one and ammunition for those already predisposed to not believing accusers. The idea is prevalent enough that one or more of these assholes who think this way are likely to end up on a jury. Any deviation from the Platonic ideal of a rape victim [1] and they morph into vindictive liars. Most defense attorneys are more than adept at discrediting plaintiffs along these lines. As a recent Cracked post states “justice is vague, while the promise of more pain is concrete.”

So are we (by we I mean America) close to implementing something similar to what the authors suggest? The articles are almost a year old and surely the ideas aren’t new. I’d also add that the solutions aren’t mutually exclusive.

It’s hard to what extent police departments are attempting to maximize the likelihood that an accuser will receive justice. Progress is both hard to determine and hard to quantify. If the Rape, Abuse & Incest National Network’s (RAINN) findings are any indication, we have a long, long way to go. Research may be able to discern which institutional changes correlate to more convictions and how replicable it is spatially, but obtaining actual justice will continue to be an uphill battle in the short term.

As for overhauling the legal system to make sexual violence allegations subject to “preponderance of the evidence” standards, googling doesn’t really yield any evidence that this kind of transformation is on the horizon. And, unfortunately, the authors do not discuss mechanisms that could produce such a radical shift in our code of law.

The articles discuss the aftermath of sexual violence, both in terms of what does and doesn’t happen to the perpetrator, and how those consequences will effect potential perpetrators in the future. Of course, none of this precludes the idea that men shouldn’t rape, regardless of whether or not there are consequences. From a young age, they need to be taught about consent and how they can play a role in ending rape culture. It’s deeply shitty, though, that large amounts of people, many of them in positions of power, do not even think it’s a problem that needs solving.

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[1] “It is well established in feminist legal critique that female complainants are discredited if they fail to conform to an archaic stereotype of the genuine or ‘real’ rape victim. This victim is not only morally and sexually virtuous she is also cautious, unprovocative, and consistent. Defence tactics for discrediting rape testimony involve exposing the complainant’s alleged failure to comply with the sexual and behavioural standards of the normative victim.”