On my mind: Rape culture. |
It Seems Bad. But Actually, It's Worse. |
 | | Gloria Allred, a lawyer who represented a number of women who accused Bill Cosby of abuse, with several of them at a news conference in 2015.Kevork Djansezian/Getty Images North America |
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I have spent the past week reporting a story about the abysmal record on rape prosecutions in the United Kingdom, where prosecutions have become so rare that the crime has been effectively decriminalized. |
The government estimates that only about 20 percent of rapes are ever reported, but of those that are, only about 1.6 percent are ever referred for prosecution. Many cases within that tiny group end in acquittal. The government recently released an "end-to-end review" excoriating the justice system's record on prosecutions, and the Justice Minister issued a public apology. |
But as I did my reporting for the story, it became clear that focusing on those dismal statistics in many ways painted too positive a picture. |
The statistics, on their own, tell a story of widespread institutional failures that have caused untold suffering to victims. But even those thorny institutional problems would be relatively easy to solve in comparison to the deeper issue that they stem from: the society-wide misogyny and rape culture that taints juries, making convictions difficult to obtain even when legal requirements are met. |
"The big elephant in the room that everybody is missing in this is that just prosecuting more cases is almost certainly not going to increase the conviction rate," said Fiona Leverick, a law professor at the University of Glasgow who studies how rape myths — false beliefs, rooted in misogyny, that justify blaming victims for their own sexual assaults or presuming them to be lying — affect juries' decision-making. |
Examples of rape myths include beliefs that if the victim "did not scream, fight or get injured, then it is not rape," or that "people who get voluntarily intoxicated are at least partly responsible for their rape," Dr. Leverick wrote in a 2019 working paper. Some myths cast doubt on accusations in general, such as the belief that "false allegations due to regret or revenge are common." Others offer a narrow view of what "real" rape involves, such as "the belief that rape only occurs between strangers in public places," as opposed to between attackers and victims who know one another. |
But while the myths are myriad and wide-ranging in their subject matter, they all boil down to the same wrong idea: that only a narrow subset of rapes, perpetrated by strangers against sober victims with unimpeachable characters and sexual histories, deserve punishment. Anything outside those parameters is either a misunderstanding or a deceitful misrepresentation of consensual sex. |
The result is that police and prosecutors are making decisions about which cases to bring forward not because they themselves necessarily believe in rape myths — though it seems clear that many do — but because they know that many potential jurors believe them. |
The effect is not unlike the way that news outlets under authoritarian regimes self-censor their stories to avoid crackdowns by state censors. True, they are making the individual decisions, but the bigger problem can only be solved by going to the root cause — in that case, authoritarian censorship, but in the case of rape investigations, the society-wide misogyny that leads jurors to believe rape myths. |
My reporting has focused on Britain, but the themes turn out to be dismally relevant to the news out of the United States this week too. This week, the Pennsylvania Supreme Court overturned Bill Cosby's 2018 conviction for raping Andrea Constand. Mr. Cosby, whom more than 50 women have accused of rape and sexual misconduct, had been sentenced to three to 10 years in prison. On Wednesday, he walked free. |
The court overturned his conviction because Bruce Castor, then the prosecutor for Montgomery County, where Bill Cosby owned a house, had entered into a non-prosecution agreement with Mr. Cosby back in 2005. Mr. Castor claimed that he did not think that he would be able to get a criminal conviction in the case, but that he wanted to help Ms. Constand obtain relief in a civil suit. So he promised not to bring criminal charges, which meant that Mr. Cosby could not invoke his Fifth Amendment right against self-incrimination when deposed in the civil suit. |
Years later, a new prosecutor decided to press forward with the case, and Mr. Cosby was convicted. But on appeal, the Pennsylvania Supreme Court ruled that Mr. Castor's promise not to prosecute meant that the trial violated Mr. Cosby's right to due process. |
In the face of systemic injustice, the incentives for good and bad actors can end up pointing in the same direction, leaving victims unprotected and perpetrators unpunished. And that is a problem far bigger than Mr. Cosby. |
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