'Keeping legs together' doesn't stop rape

00:09, Nov 15 2013
THAT SIMPLE: Sexual consent does not begin and end with securing a 'yes.'

In the latest news to come out of Rape Culture Weekly - The Ongoing WTF Files, a lawyer has defended his client against charges of rape by arguing that the victim 'could have closed her legs' if she didn't want to have sex.

The story hits all the right notes of a rape apology anthem, with Keith Jefferies arguing that a rape couldn't have occurred because 'there was no struggle or any threats, nor was there violence'. Rather, the victim had engaged in 'consensual sex' with her attacker, George Jason Pule, and then gone to the police six days later because 'she regretted the sex'. His reasoning for this? According to Pule's defence lawyer, "All she would have had to do was to close her legs....it's as simple as that. Why didn't she do that?....The reason she didn't do that was because the sex was consensual, as easy as that."

Why buy anti-rape shorts when the answer's so simple? Just close your legs ladies. It's as easy as that.

In this instance, Pule was found guilty by the court. He is yet to be sentenced. But it's notoriously difficult to prosecute rape trials, largely because it's a crime in which many people (some of whom form part of the legal system either as lawyers, judges or jury members) believe that there are extenuating circumstances in regards to rape. Traditionally, these have resulted in questions about what the victim was wearing, what her sexual history might be, the extent of her interaction with the perpetrator before they raped her, whether or not she'd been intoxicated, or - in the case of Pule - whether or not the rape followed the script of violence etc - essentially, anything that can be used as evidence to prove the rapist's innocence by ascertaining the victim's guilt.

It's a flawed system that results in only around 1 conviction in every 10 reported incidents (a percentage rate of punitive justice that decreases significantly when you consider that more than 70% of sexual assaults are never reported). Does that mean that those other nine were false accusations, examples of the mythical vengeful woman out to destroy a man's life or re-cast their regret as coercion? Of course not - while false accusations of rape do exist, they are 'a tiny bit of flotsam on a sea of rape'.

Statistically, around 2-8% of reported rapes are recorded as false accusations, a number that lowers again when you consider that 70% statistic of unreported assaults and also understand that just because it's decided to be false, doesn't mean it is. (Trigger warning in the link for descriptions of graphic sexual violence and bureaucratic abuse within the justice system.)


What this indicates is a fact that everyone needs to begin to understand at an instinctual level - that a verdict of Not Guilty doesn't always mean a reality of Innocent. All it means is that guilt was not proven to a jury or judge beyond reasonable doubt.

This is important when it comes to accusations of sexual assault, because 'reasonable doubt' is so often linked intrinsically to the social and sexual attitudes of those people determining guilt or innocence. As this fantastic piece in Deadspin posits, in a sexually repressed society (and I mean one not that has a fear of naked flesh, but a fear of true sexual freedom and expression - a charge that arguably applies to our mainstream society, given our historical fear of sexual 'transgressions' like homosexuality, polyamory, BDSM and other pursuits of sexual pleasure that exist outside of 'the norm'), we cannot be sure if a jury of our peers are able to impartially judge sexual assault without applying their own sexual and social prejudices.

If wider society still struggles to understand that clothes cannot issue consent and intoxication does not equal causation, how can we expect 12 people not to be guided by those misconceptions when determining guilt or innocence?

And then there is the issue of what sex looks like beyond consent. Consider some of the high profile incidents of sexual assaults, misconduct or just not-quite-rights that have occurred in recent years, especially those involving groups of men. From the Cronulla Sharks to Steubenville and the recent revelations of the 'Roast Busters' in Auckland, there is a distinct lack of respect and dignity afforded to the victims involved.

I'm willing to accept (although certainly not excuse) the fact that some of these men are unsure of what real consent looks like. But their actions categorically demonstrate that they have been empowered to view their female 'partners' as little more than objects to be used for their own power, privilege and pleasure.

When the 2009 Four Corners report 'Code of Silence'exposed a vile pack sex incident involving the Cronulla Sharks on a team trip to New Zealand, many of their supporters defended the players by projecting shame and guilt onto the young woman involved. Their reasoning was thus: 'Clare' had entered a hotel room with two of the players, including Matty Johns.

If 11 further players joined them, some of whom then taking their turns with her while others stood around masturbating, could they reasonably be held to account? After all, police had investigated Clare's claims and decided not to press charges. And Clare had already signified what kind of woman she was. She was the kind of woman who consented to entering a hotel room with two men. As the Roast Busters boasted of their victims, 'They knew what they were in for'.

To a large proportion of Australians, so too it seemed did Clare.

Similar arguments tend to be used against women who accuse high profile sporting stars of sexual assault: What kind of woman goes home with a football player? As Peter 'Spida' Everitt tweeted it in 2010, 'Girls!! When will you learn! At 3am when you are blind drunk & you decide to go home with a guy ITS NOT FOR A CUP OF MILO! Allegedly'. Everitt's comments were later supported by Kerri-Anne Kennerley, who told him footballers 'put themselves in harm's way by picking up strays'.

This is the difficulty with not just targeting rape culture in a society that perpetuates it so easily, but also with prosecuting individual cases. Our society en masse is so poorly developed when it comes to real sexual equality and expression that erroneous beliefs about causation and entitlement still come into play when determining violence and fault. She asked for it. He's a red blooded man, what do you expect? Her actions indicated consent; whatever happened after that is her own fault.

Sexual consent does not begin and end with securing a 'yes', but is an ongoing negotiation that must involve respect between all parties regardless of how that sex looks on the surface. Bodily integrity is paramount; it isn't something whose limits can be determined by a collection of individuals still grappling with confusion over their own relationships to sexuality. If we want to change the way sex is used to control and undermine other people, we have to first understand how we use it to control and undermine ourselves.

- Daily Life